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World Heritage Sites and
Indigenous Peoples’ Rights
Edited by Stefan Disko and Helen Tugendhat
IWGIA – Document 129
Copenhagen – 2014
World Heritage Sites and Indigenous Peoples’ Rights
Editors: Stefan Disko and Helen Tugendhat
Cover and Layout: Jorge Monrás
Cover Photos: Bangaan Rice Terraces: Jacques Beaulieu (CC BY-NC 2.0); Uluru:
unknown photographer; Ngorongoro Conservation Area: Geneviève Rose (IWGIA)
Illustrations: As indicated. Data for the little maps at the beginning of each case
study provided by IUCN and UNEP-WCMC. 2013. The World Database on Protected
Areas (WDPA). Cambridge, UNEP-WCMC. www.protectedplanet.net
Translation: Elaine Bolton (Spanish, French); Lindsay Johnstone (French)
Proof reading: Elaine Bolton
Repress and Print: Eks-Skolens Trykkeri, Copenhagen, Denmark
© The authors, IWGIA, Forest Peoples Programme and Gundjeihmi Aboriginal Corporation 2014 – All Rights Reserved
Distribution in United States:
Transaction Publishers
Raritan Center 300 McGaw Drive, Edison, NJ 08837, USA
www.transactionpub.com
The reproduction and distribution of information contained in this book for non-commercial use is welcome
as long as the source is cited. However, the translation of this book or its parts, as well as the reproduction
of the book is not allowed without the consent of the copyright holders.
The articles reflect the authors’ own views and opinions and not necessarily those of the editors or publishers
of this book.
HURIDOCS CIP DATA
Title: World Heritage Sites and Indigenous Peoples’ Rights
Editors: Stefan Disko and Helen Tugendhat
Place of publication: Copenhagen, Denmark
Publishers: IWGIA, Forest Peoples Programme, Gundjeihmi Aboriginal Corporation
Distributors: Europe: Central Books Ltd. – www.centralbooks.com; Outside Europe: Transaction Publishers – www.transactionpub.com. The title is also available from the publishers
Date of publication: November 2014
Pages: xxii, 545
ISBN: 978-87-92786-54-8
ISSN: 0105-4503
Language: English
Bibliography: Yes
Index terms: Indigenous Peoples/Human Rights/Environmental Conservation & Protection
Index codes: LAW110000/ POL035010/NAT011000
Geographical area: World
This book has been produced with financial support from The Christensen Fund and
the Gundjeihmi Aboriginal Corporation.
FOREST PEOPLES PROGRAMME
1c Fosseway Business Centre, Stratford Road
Moreton-in-Marsh, GL56 9NQ, England
Tel: +44 (0)1608 652893 – Fax: +44 (0)1608 652878
Email: [email protected] – Web: www.forestpeoples.org
GUNDJEIHMI ABORIGINAL CORPORATION
5 Gregory Place, PO Box 245, Jabiru, Northern Territory, 0886, Australia
Tel: (+61) 8 89792200 – Fax: (+61) 8 89792299
Email: [email protected] – Web: www.mirarr.net
INTERNATIONAL WORK GROUP FOR INDIGENOUS AFFAIRS
Classensgade 11 E, DK-2100 Copenhagen, Denmark
Tel: (+45) 35 27 05 00 – Fax: (+45) 35 27 05 07
Email: [email protected] – Web: www.iwgia.org
Contents
Map of Case Study Locations................................................................................................ x
Foreword
Victoria Tauli-Corpuz, UN Special Rapporteur
on the Rights of Indigenous Peoples ...............................................................................xii
Preface
Annie Ngalmirama, Chairperson, Gundjeihmi Aboriginal Corporation.............................. xv
Acknowledgements..............................................................................................................xvii
Contributors......................................................................................................................... xviii
PART I – BACKGROUND ARTICLES
World Heritage Sites and Indigenous Peoples’ Rights: An Introduction
Stefan Disko, Helen Tugendhat and Lola García-Alix................................................... 3
Indigenous Peoples and Protected Areas: Towards Reconciliation?
Marcus Colchester...................................................................................................... 39
Indigenous Peoples’ Heritage and Human Rights
Jérémie Gilbert............................................................................................................ 55
World Heritage, Indigenous Peoples, Communities and Rights: An IUCN
Perspective
Peter Bille Larsen, Gonzalo Oviedo and Tim Badman................................................ 65
PART II – CASE STUDIES
Europe
The Laponian World Heritage Area: Conflict and Collaboration in
Swedish Sápmi
Carina Green............................................................................................................... 85
Africa
The Sangha Trinational World Heritage Site: The Experiences
of Indigenous Peoples
Victor Amougou-Amougou and Olivia Woodburne.................................................... 103
‘We are not Taken as People’: Ignoring the Indigenous Identities and
History of Tsodilo Hills World Heritage Site, Botswana
Michael Taylor........................................................................................................... 119
Kahuzi-Biega National Park: World Heritage Site versus the Indigenous Twa
Roger Muchuba Buhereko........................................................................................ 131
Bwindi Impenetrable National Park: The Case of the Batwa
Christopher Kidd....................................................................................................... 147
Ignoring Indigenous Peoples’ Rights: The Case of Lake Bogoria’s
Designation as a UNESCO World Heritage Site
Korir Sing’Oei Abraham............................................................................................ 163
A World Heritage Site in the Ngorongoro Conservation Area: Whose World?
Whose Heritage?
William Olenasha...................................................................................................... 189
Asia
Western Ghats of India: A Natural Heritage Enclosure?
C.R. Bijoy.................................................................................................................. 223
Indigenous Peoples and Modern Liabilities in the Thung Yai Naresuan
Wildlife Sanctuary, Thailand: A Conflict over Biocultural Diversity
Reiner Buergin.......................................................................................................... 245
Shiretoko Natural World Heritage Area and the Ainu People
Ono Yugo.................................................................................................................. 269
Australia and Pacific
Pukulpa pitjama Ananguku ngurakutu – Welcome to Anangu Land: World
Heritage at Uluru-Kata Tjuta National Park
Michael Adams.......................................................................................................... 289
No Straight Thing: Experiences of the Mirarr Traditional Owners of
Kakadu National Park with the World Heritage Convention
Justin O’Brien............................................................................................................ 313
Rainforest Aboriginal Peoples and the Wet Tropics of Queensland World
Heritage Area: The Role of Indigenous Activism in Achieving Effective
Involvement in Management and Recognition of the Cultural Values
Henrietta Marrie and Adrian Marrie........................................................................... 341
The Tangible and Intangible Heritage of Tongariro National Park: A Ngāti
Tūwharetoa Perspective and Reflection
George Asher............................................................................................................ 377
Rapa Nui National Park, Cultural World Heritage: The Struggle of the
Rapa Nui People for their Ancestral Territory and Heritage, for
Environmental Protection, and for Cultural Integrity
Erity Teave and Leslie Cloud..................................................................................... 403
North America
Protecting Indigenous Rights in Denendeh: The Dehcho First Nations
and Nahanni National Park Reserve
Laura Pitkanen and Jonas Antoine......................................................... 423
The Pimachiowin Aki World Heritage Project: A Collaborate Effort of
Anishinaabe First Nations and Two Canadian Provinces to Nominate
a World Heritage Site
Gord Jones................................................................................................................ 441
South America
A Refuge for People and Biodiversity: The Case of Manu National Park,
South-East Peru
Daniel Rodriguez and Conrad Feather..................................................................... 459
Canaima National Park and World Heritage Site: Spirit of Evil?
Iokiñe Rodríguez....................................................................................................... 489
‘We Heard the News from the Press’: The Central Suriname Nature Reserve
and its Impacts on the Rights of Indigenous and Tribal Peoples
Fergus MacKay......................................................................................................... 515
PART III – APPENDICES
Appendix 1
African Commission on Human and Peoples’ Rights Resolution 197
on the Protection of Indigenous Peoples’ Rights in the Context
of the World Heritage Convention................................................................................... 528
Appendix 2
World Conservation Congress Resolution 5.047 on the Implementation
of UNDRIP in the Context of the World Heritage Convention.......................................... 530
Appendix 3
Call to Action of the International Expert Workshop on the World
Heritage Convention and Indigenous Peoples, Copenhagen, 2012................................ 533
Appendix 4
Report of the UN Special Rapporteur on the Rights of
Indigenous Peoples to the UN General Assembly, 2012 (Excerpt)................................. 539
Appendix 5
Letter of the UN Special Rapporteur on the Rights of
Indigenous Peoples to the World Heritage Centre, 2013................................................ 543
Case study
World Heritage sites
1
Laponian Area (Sweden)
2
Sangha Trinational (Cameroon / Central African Republic / Congo)
3
Tsodilo (Botswana)
4
Kahuzi-Biega National Park (Democratic Republic of the Congo)
5
Bwindi Impenetrable National Park (Uganda)
6
Kenya Lake System in the Great Rift Valley (Kenya)
7
Ngorongoro Conservation Area (Tanzania)
8
Western Ghats (India)
9
Thungyai-Huai Kha Khaeng Wildlife Sanctuaries (Thailand)
10
Shiretoko (Japan)
11
Uluru-Kata Tjuta National Park (Australia)
12
Kakadu National Park (Australia)
13
Wet Tropics of Queensland (Australia)
14
Tongariro National Park (New Zealand)
15
Rapa Nui National Park (Chile)
16
Nahanni National Park (Canada)
17
Pimachiowin Aki (Canada)
18
Manú National Park (Peru)
19
Canaima National Park (Venezuela)
20
Central Suriname Nature Reserve (Suriname)
xii
WORLD HERITAGE SITES AND INDIGENOUS PEOPLES’ RIGHTS
Foreword
Victoria Tauli-Corpuz, UN Special Rapporteur on the Rights of Indigenous Peoples
T
he World Heritage Convention (formally the Convention concerning the Protection of the World
Cultural and Natural Heritage) was adopted in 1972 to support the preservation of cultural
and natural heritage for the benefit of the world and its peoples. As stated in the Preamble to the
Convention, “parts of the cultural or natural heritage are of outstanding interest and therefore need
to be preserved as part of the world heritage of mankind as a whole”.
The Convention was adopted prior to most of the significant international steps that have been
taken over the past decades to recognize and protect the rights of indigenous peoples, including
the establishment of several United Nations and regional bodies dedicated to promoting and
upholding the rights of indigenous peoples. The Convention therefore does not reference or reflect
these important steps and is, in fact, in some ways at odds with them. Critical among these steps
is the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)
by the UN General Assembly in 2007.
The challenge therefore presents itself to indigenous peoples to engage with the World Heritage
Convention and its organs and States Parties in order to ensure that the implementation of the
Convention is amended and improved to take into consideration the new international consensus
regarding the importance of recognizing, respecting and protecting the rights of indigenous
peoples. This challenge is particularly urgent given the fact that World Heritage sites can be, and
have often been, declared in areas that incorporate, in part or in whole, the lands, territories and
resources of indigenous peoples. The result of this incorporation has not always been positive for
indigenous peoples, and has usually come as part of a longer pattern of conservation policies and
laws being applied at the national level.
Human rights bodies in the UN system have recognized the violations of the rights of indigenous
peoples that can result from the application of conservation policies and, more specifically, from the
implementation of the World Heritage Convention. All three of the UN mechanisms dedicated
specifically to promoting the rights of indigenous peoples (the Permanent Forum on Indigenous
Issues, the Expert Mechanism on the Rights of Indigenous Peoples and the Special Rapporteur on
the Rights of Indigenous Peoples) have called for reforms in the way in which the Convention is
applied, underlining the urgent need to reform the Operational Guidelines through which the
Convention is implemented so that they are aligned with the UNDRIP. They have highlighted the
need to adopt procedures to ensure indigenous peoples’ free, prior and informed consent when
sites are inscribed on the World Heritage List, the need to address the frequent lack of access by
indigenous peoples to information about pending nominations and other Convention processes
affecting them, and the need to take measures to ensure the protection of indigenous peoples’
FOREWORD
xiii
livelihoods and tangible and intangible cultural heritage in World Heritage areas, among many
other issues.
My predecessor as Special Rapporteur, James Anaya, dedicated a whole section of his 2012
report to the UN General Assembly to the recurring issue of the impact of World Heritage sites on
indigenous peoples, which contains a range of observations and recommendations on measures
to prevent and remedy violations of indigenous rights in the implementation of the World Heritage
Convention. Additional recommendations are contained in a communication he sent to the World
Heritage Centre on 18 November 2013. I intend to follow-up these recommendations during the
course of my mandate as Special Rapporteur.
It is clear that there is widespread recognition among human rights bodies of the legacy of
problems in the implementation of the World Heritage Convention and the impacts that this has had
on indigenous peoples. I therefore want to add my support to an important 2012 recommendation
of the UN Expert Mechanism on the Rights of Indigenous Peoples, which states: “The Expert
Mechanism… encourages the World Heritage Committee to establish a process to elaborate, with
the full and effective participation of indigenous peoples, changes to the current procedures and
operational guidelines and other appropriate measures to ensure that the implementation of the
World Heritage Convention is consistent with the United Nations Declaration on the Rights of
Indigenous Peoples and that indigenous peoples can effectively participate in the World Heritage
Convention’s decision-making processes.”
The members of the Expert Mechanism highlighted both the importance of the UN Declaration
on the Rights of Indigenous Peoples as a guide in implementing other conventions or treaties, and
the importance of full and effective participation of indigenous peoples in decision-making that
affects them, both themes that are explored at length in this book and which are fundamental to
empowering indigenous peoples to guide their own development.
This book provides detailed case studies exploring the history and continued development and
management of World Heritage sites that incorporate, in whole or in part, the lands, territories and
resources of indigenous peoples. The testimonies and histories recorded in this book reveal some
of the key challenges facing States and the World Heritage Convention bodies in ensuring that the
implementation of the Convention does, in fact, support the aspirations of indigenous peoples to
see their rights recognized and respected. The testimonies also reveal the hard work done by
indigenous peoples in fighting for respect for their rights in World Heritage areas, through direct
advocacy with the World Heritage Committee, engagement with international and/or regional
human rights bodies, and national level efforts to achieve self-determination over their lands,
territories and resources and their economic, social and cultural development as distinct peoples.
The stories contained herein reflect both the potential for the World Heritage Convention to
support the self-determined development of indigenous peoples by helping them to prevent
negative developments in their territories, and the difficulties inherent in the implementation of a
Convention that does not explicitly recognize the rights of the peoples on which it has a direct
impact. I hope that this book will form a contribution to increasing the respect between the World
Heritage Convention and the rights of the indigenous peoples living in or around the natural,
cultural and mixed sites protected under the Convention.
xiv
In accordance with Human Rights Council resolution 15/14 of 2010, core aspects of my
mandate as Special Rapporteur are examining ways and means of overcoming existing obstacles
to the full and effective protection of the rights of indigenous peoples; formulating recommendations
and proposals on appropriate measures and activities to prevent and remedy violations of the
rights of indigenous peoples; and developing a regular cooperative dialogue with all relevant
actors, including Governments, relevant United Nations bodies, specialized agencies and
programmes. As Special Rapporteur, I look forward to engaging with all the agencies and bodies
involved in the implementation of the World Heritage Convention to improve its record with indigenous
peoples, and to supporting indigenous peoples in the protection of their own heritage.

xv
Preface
Annie Ngalmirama, Chairperson, Gundjeihmi Aboriginal Corporation
S
ince the adoption of the UN Declaration on the Rights of Indigenous Peoples in 2007, a
great deal of attention has been paid to respecting the rights of Indigenous peoples in the
implementation of the World Heritage Convention. During the Convention’s 40th anniversary in
2012 (officially celebrated under the theme of “World Heritage and Sustainable Development: the
Role of Local Communities”), the need to improve protection of indigenous peoples’ rights in World
Heritage sites was often talked about. For the Gundjeihmi Aboriginal Corporation, which represents
the Mirarr Aboriginal people, this issue is very important as part of our country lies within Kakadu
National Park, which has been listed as a World Heritage site for over thirty years.
Kakadu is many things to many people. It is World Heritage, it is a national park; it is where
uranium mining occurs. For us Mirarr and other local Aboriginal people (Bininj), it is home. It is our
ancient and long-lasting home. Our word for our land is Gunred. Gunred sustains us and we
sustain it. We are obliged to care for it and for those who visit it. We do not see ourselves as
separate to our land. Our land exists through us and we exist through it.
For many years, Kakadu has been a place where the Australian government and we Bininj
have worked, lived and argued together. We Bininj are proud of our home and of its World Heritage
recognition. For over thirty years, Mirarr have worked to protect our home against unwanted
uranium mining and sometimes against the government’s way of managing our land. Sometimes,
we are at one with the government; at other times, we are in strong disagreement. We have also
resorted to open protest and, to stop the proposed Jabiluka uranium mine, campaigned here in
Kakadu and across Australia and the world. In the end we prevailed and mining at Jabiluka was
stopped.
We have learned much along this journey with the Australian Government and the UNESCO
World Heritage Committee. Kakadu’s World Heritage status has helped us to prevail, by drawing
international attention to our disagreements with the government. We have learned much about
what we believe to be the denial of our fundamental international human rights because of mining
and the way the Park has been managed.
We have also had positive experiences with the government. Over the years we have developed
close working relationships and friendships with park rangers and other government staff. They
have often helped us manage our land and they have been there during trying times. In recent
years, we have also worked alongside the Djok clan and the government in partnership to secure
World Heritage recognition of the Koongarra area.
Our journey with the government and the World Heritage Committee has had many twists and
turns and, at the end of the day, it is an ongoing journey. We have been given great hope in recent
xvi
times that our relationships with both government and industry are increasingly on a more respectful
basis, that more opportunities for Bininj people are possible. Much of this is due to Kakadu’s World
Heritage status. It helps keep an international focus on our home and our relationships.
We stand in solidarity with other Indigenous peoples in World Heritage areas across the world
and trust that their respective governments, UNESCO, and the international community will
genuinely and effectively include these peoples in all their decision-making and benefit-sharing.
We hope that this book will be a useful contribution to that end.

xvii
Acknowledgements
T
he editors of this book are grateful to the many people who supported or contributed to its
successful production in one way or another. Our warmest appreciation and thanks go to
Lola García-Alix who, in her capacity as IWGIA’s Executive Director, guided us and supported us
wherever she could throughout the production of the book and without whom this project would
certainly not have been possible.
In addition to the authors who contributed book chapters and to whom we are most grateful,
we would like to express our sincere acknowledgement and appreciation of those who submitted
or helped with chapters which, in the end, could not be included. We are also grateful to those who
reviewed chapters for us, provided comments or helped in finding authors.
We would further like to express our gratitude for the financial support received from The
Christensen Fund and the Gundjeihmi Aboriginal Corporation for the production of this book.
Finally, it is important for us to thank our families for their continuous personal support, patience
and encouragement.
Although it is not easy to separate out those who deserve special mention in a project that
benefited from the work and efforts of so many, we would like to acknowledge the following
individuals: Justin O’Brien, Mililani Trask, Victoria Tauli-Corpuz, Annie Ngalmirama, Yvonne
Margarula, Mattias Åhrén, Lars-Anders Baer, Carol Sørensen, Wilson Kipkazi, Lucy Claridge, Albert
Barume, Merrilyn Wasson, Bruce White, Ashish Kothari, Chris Erni, Ann-Elise Lewallen, Max Ooft,
Donato Bitog, Jill Carino, Alexandra Bocharnikova, Johannes Rohr, Ndukuyakhe Ndlovu, Diana
Vinding, Robert Hitchcock, Christian Strobl, Aliya Ryan, Kathrin Wessendorf, Cæcilie Mikkelsen,
Annette Kjærgaard, Marianne Wiben Jensen, Alejandro Parellada, Suzanne Jasper, Dalee Sambo
Dorough, Mechtild Rössler, Patricia Borraz, June Lorenzo, Ida Nicolaisen, James Tugendhat, and
Caroline Maciel Lauar.
Stefan Disko and Helen Tugendhat
October 2014
xviii
Contributors
Michael Adams is Associate Professor of Geography at the University of Wollongong. He is a
member of the Indigenous Peoples’ Knowledges and Rights Commission of the International
Geographical Union, and a member of two commissions of IUCN. His research focus has been on
the relationship between Indigenous peoples and Protected Areas.
Victor Amougou-Amougou began work in rural development, helping with the capacity building of
farmers’ associations and cooperatives. Since 2001 he has worked primarily on Indigenous peoples’
rights and livelihoods, through issues such as forestry, land and natural resource management,
and has conducted detailed participatory mapping of resource use in protected areas. He is cofounder and coordinator of CEFAID (Centre pour l’Education, la Formation et l’Appui aux Initiatives
de Développement au Cameroun), a local NGO with extensive CSO networks throughout the
Congo Basin.
Jonas Antoine is a Dehcho Dene Elder from Liidlii Kue First Nation. Jonas was a member of
the Nahanni Expansion Working Group, is a member of the Naha Dehe Consensus Team and
represents the Dehcho First Nations in other protected areas initiatives in the Dehcho Process.
George Asher is of Maori descent and Chief Executive Officer of the Lake Taupo and Lake
Rotoaira Forest Trusts in New Zealand. Both trusts comprise 55,000 hectares of ancestral lands of
which 33,000 hectares are planted with commercial production forests. Parts of these lands adjoin
Tongariro National Park and have been protected in their natural state. George has been actively
involved in the development of his tribe, Ngāti Tūwharetoa, for the past 30 years and was also
independent advisor to the 2006-07 Chairperson of the World Heritage Committee.
Tim Badman is Director of the World Heritage Programme at the International Union for
Conservation of Nature (IUCN), with responsibility for managing IUCN’s official advisory role to
the UNESCO World Heritage Committee, and developing IUCN’s wider activities related to World
Heritage.
C.R. Bijoy is an independent researcher-activist who is primarily involved in indigenous peoples’
struggles, for instance with the Campaign for Survival and Dignity, a national coalition of Adivasi
and forest dweller organisations.
Reiner Buergin is an anthropologist with a background in forestry. He has carried out extensive
field research in the Thung Yai Naresuan Wildlife Sanctuary, studying problems of local change and
land use in the context of national forest policies and international environmentalism.
CONTRIBUTORS
xix
Leslie Cloud is a researcher in public law, legal anthropology and indigenous peoples’ rights. She
is currently undertaking a PhD in public law on the recognition of the rights of indigenous peoples in
Chile and is working in on the SOGIP (Scales of Governance: The UN, the States and Indigenous
Peoples) project, funded by the European Research Council (ERC 249236) and based at the École
des Hautes Études en Sciences Sociales (EHESS) in Paris.
Marcus Colchester received his doctorate in social anthropology from the University of Oxford
and has carried out extensive field research in applied anthropology, mainly in Amazonia, South
and South-East Asia. His human rights advocacy related to development and conservation has
earned him a Pew Conservation Fellowship and the Royal Anthropological Institute’s Lucy Mair
Medal for Applied Anthropology. He is a founder member of the World Rainforest Movement and
was for many years the Director of the Forest Peoples Programme, where he now acts as Senior
Policy Advisor. He has published extensively and is the author and editor of numerous books on
forests, biodiversity and human rights.
Stefan Disko holds an M.A. in Ethnology, American Cultural History and International Law
from the Ludwig-Maximilians-University Munich and an M.A. in World Heritage Studies from the
Brandenburg University of Technology. Since 2000, his professional life has focused on working
with indigenous organisations on human rights issues, mostly in the context of the United Nations.
He has published various articles and reports on World Heritage and indigenous peoples’ rights.
Conrad Feather is an anthropologist (PhD, University of St Andrews, UK) who has worked with
indigenous peoples in south-east Peru since 2000 and is now working for the Forest Peoples
Programme as a Project Officer.
Lola García-Alix holds an M.A. in Sociology from the Complutense University of Madrid. She has
worked at IWGIA since 1990 and has held a variety of positions within the organisation. From 1993
until 2006 she served as Coordinator of the International Human Rights Advocacy Program. In
2004, she was appointed Vice-Director by IWGIA’s Board and, in 2007, Executive Director. Since
September 2014 she has resumed her position overseeing IWGIA’s International Human Rights
Advocacy work.
Jérémie Gilbert is a Reader in Law at the University of East London. He has published various
books and articles on the rights of indigenous peoples, in particular on territorial rights, with his
latest being Nomadic Peoples and Human Rights (Routledge, 2014). Jérémie often works with
indigenous communities and NGOs on cases involving land rights. As a legal expert he has
been involved in providing legal briefs, opinions and carrying out evidence gathering in several
cases involving indigenous peoples’ land rights, especially in Africa. He is a member of IWGIA’s
international board, a member of Minority Rights Group International’s Advisory Board on the
Legal Cases Programme and also regularly works with the Forest Peoples Programme and the
Rainforest Foundation.
xx
Carina Green holds a PhD in Cultural Anthropology from Uppsala University. Her research focuses
on indigenous peoples and ethno-political mobilization. Her doctoral thesis approached the process
of implementing a management plan in the Laponian World Heritage Area in Sweden. She has also
carried out fieldwork in Australia and New Zealand on indigenous influence over World Heritage
management and on the relationship between indigenous groups and environmental authorities
in general. Carina is currently working for the Swedish Biodiversity Centre, a collaborative centre
between the Swedish University of Agricultural Sciences and Uppsala University.
Gord Jones is Project Manager with the Pimachiowin Aki Corporation. Prior to joining the
corporation in 2007 he worked for the Manitoba Government as Director of the Parks and Natural
Areas Branch.
Chris Kidd received his M.A. and PhD in Social Anthropology from the University of Glasgow. His
research and work among the Batwa of south-west Uganda focuses on the impact of development
and conservation initiatives on Batwa livelihoods and futures. Chris is a Policy Advisor for the
Forest Peoples Programme.
Peter Bille Larsen is a Danish anthropologist who has worked in Asia, Latin America and at the
international level on conservation and social equity issues. He is a member of IUCN’s Commission
on Environmental, Economic and Social Policy (CEESP) and is actively involved in strengthening
management approaches to World Heritage.
Fergus MacKay has worked in Suriname for over a decade, including acting for the Sa’amaka on
the landmark Saramaka v Suriname case decided by the Inter-American Court on Human Rights
in 2007. He works as the Legal Counsel for the Forest Peoples Programme.
Adrian Marrie serves as Bukal’s company secretary. He has worked privately as a consultant
with organisations such as the Foundation for Aboriginal and Islander Research Action (FAIRA),
Bama Wabu Rainforest Aboriginal Corporation, the Yarrabah Community Council, and the Wungal
Environment Foundation, essentially advising on cultural heritage policy and issues, community
development plans and the development of reference manuals and guides. Consultancies have
also included working with the Great Barrier Reef Marine Park Authority and the CSIRO.
Henrietta Marrie is a member of the Gimuy Walubara clan of the Yidinji people and Traditional
Owner of the land on which the city of Cairns and southern suburbs is now located. Henrietta has
wide experience of indigenous cultural and natural resource management and impact assessment,
intellectual and cultural property law, heritage legislation and philanthropy. She has published over
40 papers in academic books and journals and served for six years on the Secretariat of the
Convention on Biological Diversity in Montreal before becoming the Program Officer for North
Australia with The Christensen Fund. She is currently an Adjunct Senior Fellow with the United
Nations University – Institute of Advanced Studies (based in Yokohama, Japan) working on the
Institute’s Traditional Knowledge Initiative.
CONTRIBUTORS
xxi
Roger Muchuba Buhereko is a human rights lawyer who has worked to defend the rights of
Pygmy communities in Central Africa, including his home country of the Democratic Republic of
Congo. He has worked as a social and environmental specialist for the World Bank, led the training
programme for Héritiers de la Justice (Inheritors of Justice) in the DRC, and is now the National
Coordinator of the Working Group on Climate and REDD, a civil society working group in the DRC.
Justin O’Brien has worked for the Mirarr people for 14 years and is currently Chief Executive
Officer of the Gundjeihmi Aboriginal Corporation. He was previously Senior Policy Advisor to the
Northern Land Council, a senior policy advisor with the Northern Territory Department of the Chief
Minister, a media advisor to Australian Democrat Senator Lyn Allison and a journalist in rural and
regional print media. Justin holds a Bachelor of Arts degree from Monash University.
William Olenasha is an advocate of the High Court of Tanzania currently practising with
RAMATLaw Advocates and Legal Consultants (Arusha). A long-time activist for pastoralists’
rights in Tanzania, he has worked as an Oxfam Programme Specialist for Lands and Pastoralism
and as the Coordinator of the Joint Oxfam Livelihoods Initiative for Tanzania. He is currently a
serving member of the Tanzania Constituent Assembly as a Presidential Appointee representing
pastoralists. He is a legal advisor to the Pastoral Council in the Ngorongoro Conservation Area and
has been at the forefront of championing for Maasai rights there. His publications on Ngorongoro
include Parks Without People: the Case of Ngorongoro Conservation Area.
Gonzalo Oviedo is an anthropologist and environmentalist from Ecuador. He works as Senior
Advisor on Social Policy at IUCN Headquarters in Gland, Switzerland, where he facilitates the
integration of social issues into IUCN’s conservation work, with particular focus on indigenous and
traditional peoples, community-based natural resource management, rights and governance.
Laura Pitkanen is a political and environmental geographer. She was a representative for the
Dehcho First Nations on the Nahanni Expansion Working Group and an analyst in the Dehcho
Process. Laura is a PhD Candidate in Geography at the University of Toronto.
Daniel Rodriguez is a PhD student in the School of Anthropology & Conservation at the University
of Kent, UK who worked as an anthropological advisor for the Isolated Peoples Programme of the
Native Federation of Madre de Dios (FENAMAD) from October 2010 to December 2012.
Iokiñe Rodríguez is a Venezuelan sociologist with an M.Phil. in Environment and Development
from the University of Cambridge, a PhD in Development Studies from the University of Sussex
and undertook post-doctoral research at the Centre of Social Studies of Science at the Venezuela
Institute of Scientific Research (IVIC). She has dedicated most of her professional life to the study
of socio-environmental conflicts, with a special interest in politics of knowledge and indigenous
peoples’ environmental knowledge systems.
Korir Sing’Oei Abraham is a human rights lawyer specialising in minority and indigenous peoples’
rights and is co-founder of the Centre for Minority Rights and Development (CEMIRIDE). He has
xxii
worked particularly with the Nubian, Ogiek, Endorois, Somali, Maasai and Batwa peoples and was
lead counsel for the Endorois community in Kenya, representing them in their landmark case at the
African Commission on Human and Peoples’ Rights (ACHPR).
Michael Taylor is Programme Manager for Global Policy and Africa at the Secretariat of the
International Land Coalition in Rome, Italy. He is a citizen of Botswana and holds a PhD in Social
Anthropology from the University of Edinburgh. He undertook research in Tsodilo from 1994-1996
in his role as Assistant Curator for Ethnology at the National Museum of Botswana and is one of
the co-editors of the book “Tsodilo Hills: Copper Bracelet of the Kalahari” published in 2010. He
has also worked in the Botswanan Ministries of Agriculture, and Environment, Wildlife and Tourism,
and for UNDP.
Erity Teave is a Rapa Nui and the great-granddaughter of the great Rapa Nui leader Daniel Teave
who was kidnapped, tortured and disappeared by the Chilean state in 1914. In recognition of the
struggle for respect of the Rapa Nui nation’s fundamental rights, continued by Erity Teave for 30
years, she was appointed Human Rights Director of the Rapa Nui Parliament and currently acts as
the Rapa Nui Parliament’s representative abroad. Since March 2013 she has also been the elected
President of the Council of Clan Chiefs.
Helen Tugendhat is a Policy Advisor on human rights and on international financial policies and
safeguards at the Forest Peoples Programme. She lived and worked with indigenous peoples
in Thailand for over ten years, working both for indigenous peoples’ organisations and for the
United Nations Development Programme. She has authored and edited books on violence against
indigenous women, human rights and dam construction, and indigenous rights in climate change
mitigation policies.
Olivia Woodburne conducted her PhD research among BaAka communities in the Dzanga
Sangha Reserve in the Central African Republic. Her research explored the relationship between
the BaAka and the conservation project. She currently works as a communications assistant for
the Forest Peoples Programme.
Ono Yugo is a professor emeritus at Hokkaido University, and professor at Hokkai Gakuen
University. He is part of the non-profit organisation World Indigenous Peoples Network, Ainu (WinAinu) and has been closely involved in efforts to increase the role of the Ainu in the management
of the Shiretoko World Heritage site.
PART I
1
BACKGROUND ARTICLES
2
3
World Heritage Sites and Indigenous Peoples’ Rights:
An Introduction
Stefan Disko, Helen Tugendhat and Lola García-Alix
I
n September 2007, following more than 20 years of negotiations between UN Member States
and indigenous peoples’ representatives, the UN General Assembly adopted the United Nations
Declaration on the Rights of Indigenous Peoples (UNDRIP). In the Preamble to the Declaration, the
General Assembly emphasized that the United Nations has an important and continuing role to play in
promoting and protecting the rights of indigenous peoples. In light of this special role, Articles 41 and
42 of the Declaration provide that the organs and specialized agencies of the United Nations system
and other intergovernmental organizations shall contribute to the full realization of the provisions
of the Declaration through, inter alia, financial and technical assistance; that ways and means of
ensuring the participation of indigenous peoples on issues affecting them shall be established; and
that the United Nations, its bodies and agencies and Member States shall promote respect for and full
application of the Declaration and follow up on its effectiveness.1 Responsibility to promote respect
for the Declaration applies throughout the United Nations system and, in particular, to United Nations
institutions whose activities affect indigenous peoples, including the United Nations Educational,
Scientific and Cultural Organization (UNESCO) and the World Heritage Committee.2
Of the roughly 1,000 areas designated as World Heritage sites under UNESCO’s 1972
Convention concerning the Protection of the World Cultural and Natural Heritage (World Heritage
Convention) as of 2014, a large number are fully or partially located within the traditional territories
of indigenous peoples and are of great significance for their livelihoods and their spiritual, social
and cultural well-being. While establishing an exact number of such ‘indigenous sites’ would require
careful analysis, it is clear that there are close to 100 such sites, including well over a third of all
sites designated as ‘natural’ World Heritage sites by the World Heritage Committee.3
What is also clear is that the impact of World Heritage sites on indigenous peoples has not
always been positive. In his 2012 report to the UN General Assembly, the former UN Special
1 The commitment of the United Nations to implementing the UNDRIP was reaffirmed in September 2014 on the
occasion of the high-level meeting of the General Assembly known as the World Conference on Indigenous Peoples.
2 Anaya 2012b, paras. 27, 41.
3 As of July 2014, there were a total of 1,007 World Heritage sites, including 197 ‘natural’ sites, 779 ‘cultural’ sites and
31 ‘mixed’ sites (listed because of both their natural and cultural significance).
Left: Rice Terraces of the Ifugao in Batad, Philippines, inscribed on the World Heritage List in 1995 as a cultural landscape.
Unlike most indigenous sites on the World Heritage List, the Ifugao Rice Terraces were included in recognition of indigenous
cultural values. Photo: Adi Simionov (CC BY-SA 3.0)
4
Rapporteur on the rights of indigenous peoples, James Anaya, remarked that: “Indigenous
peoples have expressed concerns over their lack of participation in the nomination, declaration
and management of World Heritage sites, as well as concerns about the negative impact these
sites have had on their substantive rights, especially their rights to lands and resources”. The
Special Rapporteur highlighted this as a “recurring issue” that had arisen in the context of his
communications with governments regarding specific allegations of human rights violations, as well
as in the context of his reports examining the situation of indigenous peoples in particular countries.4
Concerns regarding the human rights impacts of World Heritage sites have also been raised by
the two other UN mechanisms with specific mandates concerning the rights of indigenous peoples:
the UN Permanent Forum on Indigenous Issues (UNPFII)5 and the Human Rights Council’s Expert
Mechanism on the Rights of Indigenous Peoples (EMRIP).6
The purpose of this book is to analyze, through case studies of World Heritage sites in different
parts of the world, the extent to which the principles of the UNDRIP are being fulfilled in the
implementation of the World Heritage Convention. Case studies explore and document indigenous
peoples’ experiences with World Heritage sites and in particular with the processes of the World
Heritage Convention at both the national/site level and the international/UNESCO level. They
examine the effects of World Heritage status on indigenous peoples’ lives and on the realization of
their human rights (whether positive or negative) and the level of involvement of indigenous peoples
in management and decision-making processes, especially their involvement in Convention
processes such as the nomination of sites, the elaboration of management plans, reporting and
monitoring, site evaluations and the decision-making of the World Heritage Committee. The book
includes both examples of sites where indigenous peoples have been marginalized and their rights
have been violated and examples where indigenous peoples’ experiences with the World Heritage
system have generally been positive and where indigenous peoples have benefited from the World
Heritage Convention in one way or another. There are also case studies of World Heritage sites
where problems that have arisen are being addressed or have been overcome, and which could
therefore serve as positive examples for other sites facing challenges.
It is our hope that the book will help to identify recurring issues and concerns, as well as
systemic gaps and shortcomings, in order to contribute to discussions about what changes or
actions are needed to address concerns and to ensure that the World Heritage Convention can play
a consistently positive role in securing human rights. We hope that the book will stimulate debate
and action towards making the implementation of the World Heritage Convention consistent with
the UNDRIP, will contribute ideas on the way forward and will outline possible ways for the World
Heritage Committee, UNESCO, States and indigenous peoples to address the concerns identified.
Our vision is for the World Heritage Convention and the UNDRIP to be mutually reinforcing.
The production of the book coincided with, and was inspired by, two unrelated but thematically
connected events: the World Heritage Convention’s 40th anniversary in 2012 and the World
4 Anaya 2012b, paras. 33-42. The section of Anaya’s 2012 report discussing the World Heritage Convention is
reproduced in Appendix 4 of this volume.
5 See, e.g., UNPFII 2010a, para. 131; UNPFII 2010b; UNPFII 2011, paras. 40-42; UNPFII 2013, para. 23; Cunningham 2012.
6 See, e.g., EMRIP 2011, Annex, para. 38; EMRIP 2012, p. 7 (Proposal 9: World Heritage Committee).
WORLD HERITAGE SITES AND INDIGENOUS PEOPLES’ RIGHTS: AN INTRODUCTION
5
Conference on Indigenous Peoples in 2014. The World Heritage Convention’s 40th anniversary
was celebrated by UNESCO under the theme of “World Heritage and Sustainable Development:
the Role of Local Communities” and was intended to provide a framework for focusing on “issues
pertaining to the well-being and responsibilities of the local communities”.7 The celebration of
the anniversary was meant to “present an opportunity for the international community involved
in cultural and natural heritage conservation to reflect on the achievements of the Convention to
date as well as to take stock of the challenges with which it is confronted”.8 The World Heritage
Committee explicitly noted in a decision that considerations related to indigenous peoples, and in
particular questions raised by the UN Permanent Forum on Indigenous Issues, “should be included
in the theme of the 40th Anniversary”.9
States Parties to the World Heritage Convention were encouraged by the Committee to
“develop, support and carry out activities to promote the anniversary and to… mobilize various
UNESCO related institutions, programmes and networks to join in celebrating the anniversary”.10
The Danish Agency for Culture acted on this request by partnering with IWGIA and the Government
of Greenland to organize an international expert workshop on the World Heritage Convention and
indigenous peoples, which took place in Copenhagen in September 2012 and involved, among
others, several of the authors of articles contained in this book.11 The workshop resulted in a Call
to Action addressing the urgent need to make the implementation of UNESCO’s World Heritage
Convention consistent with the UNDRIP.12
In addition to the 40th anniversary, this book is intended as a contribution to the objectives of
the World Conference on Indigenous Peoples (WCIP), a two-day high-level plenary meeting of
the UN General Assembly held in New York City in September 2014, at the end of the Second
International Decade of the World’s Indigenous People (2005-2014). The official purpose of the
World Conference was “to share perspectives and best practices on the realization of the rights
of indigenous peoples, including to pursue the objectives of the United Nations Declaration on the
Rights of Indigenous Peoples”.13 During the preparatory process for the WCIP, indigenous peoples
organized a Global Indigenous Preparatory Conference, which took place in Alta, Norway in June
2013. One of the things highlighted by indigenous peoples in the Alta Outcome Document was
the need for the World Heritage Committee, UNESCO and States to revise the World Heritage
Convention’s Operational Guidelines to ensure that the rights of indigenous peoples are respected
in the nomination, designation, management and monitoring of World Heritage sites.14 The outcome
document of the WCIP itself, unanimously adopted by the General Assembly, reaffirms the solemn
commitment of States to respect, promote and advance the rights of indigenous peoples set out in
7
8
9
10
11
12
13
14
UNESCO 2011a, para. 5.
UNESCO 2011a, para. 1.
Decision 35 COM 12D (2011), para. 10.
Decision 35 COM 12D (2011), para. 5.
For the report of the expert workshop see Disko and Tugendhat 2013.
See Appendix 3 at the end of this volume.
See General Assembly resolutions A/RES/65/198 (2011) and A/RES/66/296 (2012).
Alta Outcome Document, p. 5. Contained in UN Doc. A/67/994, Annex.
6
the UNDRIP, underlines the important role of the United Nations system in this regard and requests
that the UN Secretary-General develop a system-wide Action Plan to ensure a coherent approach
to the full realization of the provisions of the UNDRIP.15 We hope that this book will be a useful
reference for the United Nations, UNESCO and the World Heritage Committee in the elaboration
and implementation of this Action Plan.
The United Nations Declaration on the Rights of Indigenous Peoples
Solemnly proclaimed by the UN General Assembly in 2007 with the approval of an overwhelming
majority of Member States,16 and with the support of indigenous peoples worldwide, the United
Nations Declaration on the Rights of Indigenous Peoples reflects the existing international
consensus regarding the individual and collective human rights of indigenous peoples in a way that
is coherent with the provisions of other human rights instruments.17 It represents, as affirmed by the
UN Special Rapporteur James Anaya, “an authoritative common understanding, at the global level,
of the minimum content of the rights of indigenous peoples, upon a foundation of various sources of
international human rights law”.18 This echoes the text of the Declaration itself, according to which
the rights recognized in the Declaration “constitute the minimum standards for the survival, dignity
and well-being of the indigenous peoples of the world.”19
Recognizing in its Preamble that “indigenous peoples have suffered from historic injustices as
a result of, inter alia, their colonization and dispossession of their lands, territories and resources,
thus preventing them from exercising, in particular, their right to development in accordance with
their own needs and interests”, the Declaration responds to “the urgent need to respect and promote
the inherent rights of indigenous peoples…, especially their rights to their lands, territories and
resources”.20 The Declaration therefore has, as Anaya notes, “an essentially remedial character,
seeking to redress the systemic obstacles and discrimination that indigenous peoples have faced
in their enjoyment of basic human rights”.21
It is important to emphasize that the Declaration does not bestow a set of special or new rights
upon indigenous peoples that are separate from the universally applicable fundamental human
rights but rather provides a contextualized elaboration of general human rights principles and rights
as they relate to the specific historical, cultural, social and economic circumstances of indigenous
peoples.22 In doing so, it reflects and builds upon relevant provisions of human rights instruments
15 Outcome document of the high-level plenary meeting of the General Assembly known as the World Conference on
Indigenous Peoples (UN Doc. A/RES/69/2).
16 The UNDRIP was adopted by a vote of 143 in favour to 4 against, with 11 abstentions. However, all 4 opposing States
(Australia, Canada, New Zealand, United States) and two of the abstaining States (Colombia, Samoa) have since
reversed their positions and formally endorsed the Declaration.
17 EMRIP 2011, p. 22; Anaya 2011, para. 69.
18 Anaya 2008, para. 85.
19 Art. 43 (emphasis added).
20 Preambular paras. 6 and 7.
21 Anaya 2008, paras. 86.
22 Anaya 2008, paras. 40, 86; Anaya 2013, para. 70.
7
The UN General Assembly votes to adopt the Declaration on the Rights of Indigenous Peoples, United Nations,
New York, 13 September 2007. Photo: Stefan Disko
of general applicability, as interpreted and applied by United Nations and regional human rights
bodies, as well as the standards contained in the Convention concerning Indigenous and Tribal
Peoples in Independent Countries (ILO Convention No. 169).
Therefore, while the UN Declaration itself is not a legally binding document, the standards found
therein connect to existing State obligations under other human rights instruments that are legally
binding on States. The Declaration builds upon the general human rights obligations of States
under the Charter of the United Nations23 and is grounded in fundamental human rights principles
such as non-discrimination, self-determination and cultural integrity, which are incorporated into
widely ratified human rights treaties such as the International Covenant on Civil and Political Rights
(ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the
International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).24 Since
the adoption of the UN Declaration, the human rights treaty bodies that monitor the implementation
23 Under the UN Charter, a binding multilateral treaty of the highest order, the United Nations and its Member States have
an obligation to respect and promote human rights on a non-discriminatory basis. See Arts. 1(2), 1(3), 55 and 56 of the
UN Charter.
24 Anaya 2011, para. 68; Anaya 2013, paras. 63, 65.
8
of these treaties have frequently interpreted and applied their provisions in ways that reflect the
Declaration, and often explicitly refer to the Declaration in so doing.25
Additionally, the UNDRIP “includes several key provisions which correspond to existing
State obligations under customary international law”, as the International Law Association (ILA)
found after an extensive survey of international and State practice in relation to the Declaration.26
Norms of customary international law are binding on all States, irrespective of whether or not
they have ratified any of the relevant treaties. They are also directly binding on international
intergovernmental organizations.27 While the Declaration as a whole cannot yet be considered as a
statement of existing customary international law, the ILA notes that the provisions in the UNDRIP
that do not yet correspond to customary international law nevertheless do express the aspirations
of the international community to improve existing standards for the safeguarding of indigenous
peoples’ human rights. The fact that States recognized them in a “Declaration” adopted within
the framework of the obligations established by the Charter of the United Nations to promote and
protect human rights on a non-discriminatory basis, and passed with overwhelming support by the
UN General Assembly, results in “an expectation of maximum compliance by States and the other
relevant actors”.28
Provisions of the UNDRIP which, according to the findings of the ILA, correspond not only to
State obligations under the major international human rights treaties but also to existing norms
of customary international law include provisions in the areas of self-determination, autonomy or
self-government (including participatory rights), cultural rights and identity, land rights as well as
reparation, redress and remedies.29 While an in-depth discussion of the normative content of the
UNDRIP is beyond the scope of this chapter, these five areas of rights will be briefly outlined below
in order to better contextualize the issues raised in the case studies explored in this book.
Self-determination
Article 3 of the UNDRIP affirms that “Indigenous peoples have the right to self-determination. By
virtue of that right they freely determine their political status and freely pursue their economic,
25 For a compilation of UN human rights treaty body jurisprudence pertaining to indigenous peoples, see Forest Peoples
Programme 2013. Also see ILA 2010.
26 ILA 2012b (Resolution No. 5/2012: Rights of Indigenous Peoples), para. 2. (For the survey itself see ILA 2010 and
2012a). Likewise, the UN Special Rapporteur has noted that “some aspects of the Declaration — including core
principles of non-discrimination, cultural integrity, property, self-determination and related precepts that are articulated
in the Declaration — constitute, or are becoming, part of customary international law or are general principles of
international law… It cannot be much disputed that at least some of the core provisions of the Declaration, with their
grounding in well-established human rights principles… reflect customary international law” (Anaya 2013, para. 64)
27 See the International Law Association’s report on the Accountability of International Organizations (ILA 2004), p. 22;
and Reinisch 2005, p. 46 ff.
28 ILA 2012b, para. 3. Similarly, Anaya 2013, paras. 61-63.
29 ILA 2010, pp. 43, 51.
9
social and cultural development.” 30 The wording of Article 3 mirrors a provision contained in the
two international human rights Covenants (ICCPR and ICESCR) which upholds the right to selfdetermination for “[a]ll peoples”.31 This underscores the fact that the right to self-determination of
indigenous peoples is the same right to self-determination that all peoples enjoy under international
law.32
In essence, the right to self-determination “provides indigenous peoples with the right to
control their own destiny and govern themselves… and embodies their right to live and develop as
culturally distinct groups”.33 The former Chair of the UN Working Group on Indigenous Populations,
Erika-Irene Daes has remarked that “[t]he true test of self-determination is not whether Indigenous
Peoples have their own institutions of self-determination, legislative authorities, laws, police, or
judges,” but rather “whether Indigenous Peoples themselves actually feel they have choices about
their way of life” and thus are able “to live well and humanly in their own ways”.34
In the context of World Heritage, a crucial element of the right to self-determination is the
right of indigenous peoples to manage, for their own benefit, their own natural resources.35 As
the UN Human Rights Committee has emphasized, referring specifically to indigenous peoples,
“the right to self-determination requires, inter alia, that all peoples must be able to freely dispose
of their natural wealth and resources and that they may not be deprived of their own means of
subsistence”.36 This means, among other things, that the extinguishment of inherent aboriginal
rights to lands and resources is incompatible with indigenous peoples’ right to self-determination.37
Autonomy, self-government and the right to participate in decision-making
Directly related to indigenous peoples’ exercise of their right to self-determination is their right to
autonomy or self-government, affirmed in Article 4 of the UNDRIP as follows: “Indigenous peoples,
in exercising their right to self-determination, have the right to autonomy or self-government in
30 The right to self-determination is to be exercised in conformity with relevant rules of international law and the principles
of equality and non-discrimination, as the UNDRIP itself makes clear (Art. 46; preamb. para. 17). In particular, it is to
be exercised in a way that is compatible with the principle of territorial integrity and political unity of States. It does not
include a right for indigenous peoples to unilaterally establish their own State, i.e. a right of secession, except under
such circumstances where this right exists for all peoples under general international law. See ILA 2010, pp. 9-10.
31 See identical Art. 1 of the ICCPR and the ICESCR.
32 On this aspect, see Anaya 2013, paras. 74-77; and ILA 2010, pp. 10-11. The treaty bodies that monitor the
implementation of the two human rights Covenants have repeatedly invoked Art.1 of the Covenants in relation to
indigenous peoples. See Forest Peoples Programme 2013.
33 ILA 2010, p. 10.
34 Daes, E.-I. 2001. The Concepts of Self-Determination and Autonomy of Indigenous Peoples in the Draft United Nations
Declaration on the Rights of Indigenous Peoples. St. Thomas Law Review 14, p. 263 f. Quoted in ILA 2010, p. 11.
35 EMRIP 2011, Annex, para. 18.
36 CCPR 1999, para. 8. According to Art. 1, para. 2 of the two human rights Covenants, “[all] peoples may, for their own
ends, freely dispose of their natural wealth and resources... In no case may a people be deprived of its own means of
subsistence.” Both the Human Rights Committee and the Committee on Social, Economic and Cultural Rights have
repeatedly applied this provision to indigenous peoples.
37 CCPR 1999, para. 8.
10
matters relating to their internal and local affairs...”38 The right of indigenous peoples to autonomy
or self-government involves, on the one hand, the right to organize their social, economic, cultural
and political life through their own laws, customs and practices and to establish, maintain and
develop their own legal, political and cultural institutions (Articles 5, 18, 34 UNDRIP). On the other,
it involves the right to effectively participate in external decision-making processes that affect them
and to be consulted prior to the approval of any project or measure that may impact on their rights,
lands or ways of life, with the objective of achieving agreement or consensus (Articles 18, 19, 32
UNDRIP).39
The participatory rights of indigenous peoples, and corresponding duties of States, are
essential elements of indigenous peoples’ right to self-determination and have been repeatedly
affirmed by international human rights courts and treaty bodies. As will be seen in the following
chapters of this book, they are crucial in the context of the World Heritage Convention.40 The
UNDRIP recognizes indigenous peoples’ “right to participate in decision-making in matters which
would affect their rights, through representatives chosen by themselves in accordance with their
own procedures” (Article 18). At the same time, the Declaration recognizes that States have a duty
to “consult and cooperate in good faith with the indigenous peoples concerned through their own
representative institutions in order to obtain their free, prior and informed consent before adopting
and implementing legislative or administrative measures that may affect them” (Article 19).41
While the modalities of indigenous participation can vary depending on the specific
circumstances, it is essential for States to ensure that the participation of indigenous peoples in
matters which would affect their rights is effective. For participation to be effective, indigenous
peoples must actually be able to participate in decision-making processes through their own
representative institutions and organizations and must be able to influence the outcomes of these
processes. This may require special mechanisms to be created for indigenous participation, and
that indigenous peoples are made aware of their existence.42 Furthermore, for indigenous peoples to
be able to make free and informed decisions about a given project, they must be “provided with full
and objective information about all aspects of the project that will affect them, including the impact
of the project on their lives and environment”, as UN Special Rapporteur James Anaya has noted.43
Information must be presented in a manner and form understandable to indigenous peoples, and
indigenous consent must be sought sufficiently in advance of any authorization or commencement
of activities, with due respect for the time requirements of indigenous decision-making processes.44
38 The ILA report on the rights of indigenous peoples notes that Art. 4 of the UNDRIP implicitly encompasses a “right
to territorial self-government”. Indeed, considering the extent to which the social, economic, cultural and political life
of indigenous peoples is connected to their lands and territories, “control over traditional lands is the key feature of
indigenous peoples’ autonomy, conceived as an element of self-determination” according to the report (ILA 2010, p. 13).
39 See ILA 2010, pp. 12-16; ILA 2012a, pp. 3-7; and EMRIP 2011, Annex.
40 See EMRIP 2011, p. 24 ff.
41 Similarly, Art. 32(2) with regard to projects affecting indigenous peoples’ lands, territories or resources. Also see paras.
3 and 20 of the outcome document of 2014 World Conference on Indigenous Peoples (UN Doc. A/RES/69/2), where
these provisions are reaffirmed.
42 See, e.g., EMRIP 2011, pp. 24-26; Anaya 2009, paras. 36-57; ILA 2010, p. 14.
43 Anaya 2009, para. 53.
11
Generally, States should enable the full and effective participation of indigenous peoples in all stages
of an initiative or project, from design, implementation, monitoring and evaluation to benefit-sharing.45
Cultural rights and identity
The protection of indigenous peoples’ cultural identity and cultural rights represents a predominant
theme throughout the whole text of the UNDRIP. The Declaration includes a number of provisions
affirming the right of indigenous peoples to practise, develop and revitalize their cultural and spiritual
traditions and customs and to maintain, control, protect and develop their tangible and intangible
cultural heritage, traditional knowledge and traditional cultural expressions (Articles 11, 12, 13, 25,
31 and 34, among others). Other provisions affirm the collective right of indigenous peoples to live
in freedom, peace and security as culturally distinct groups (Articles 7, 8, 9, and 33) and the right
of indigenous peoples and individuals “not to be subjected to forced assimilation or destruction of
their culture” (Article 8). Another key provision in terms of cultural rights and identity is Article 10 of
the UNDRIP, affirming the right of indigenous peoples not to be forcibly removed from their lands
or territories. Particularly relevant in the context of the World Heritage Convention, this provision
“addresses the practice, quite common in the past, of removing indigenous peoples from their
territories mainly for economic and development reasons, with tremendous consequences for their
physical and cultural survival”.46
The cultural rights affirmed in the UNDRIP find confirmation in a number of provisions included
in international human rights treaties, such as Article 27 of the ICCPR, Article 15 of the ICESCR,
or Article 5(e)(vi) of the ICERD.47 The monitoring bodies of these treaties have on many occasions
invoked these provisions in support of rights affirmed in the UNDRIP. In doing so, they have
stressed that cultural rights entail the recognition of land rights for indigenous peoples, due to the
fundamental importance of indigenous peoples’ relationship to their lands, territories and resources
for retaining their culture and cultural identity.48
Moreover, the ILA recognizes a customary international law norm protecting the right of
indigenous peoples to recognition and preservation of their cultural identity. States are bound,
according to the ILA, “to recognise, respect, protect and fulfil indigenous peoples’ cultural identity
(in all its elements, including cultural heritage) and to cooperate with them in good faith – through all
44
45
46
47
On the elements of free, prior and informed consent, see UNDG 2009, p. 30 and EMRIP 2011, Annex.
UNDESA 2008, p. 17.
ILA 2010, p. 18. Also see UNDRIP Art. 8, paras. 2(b)and 2(c).
Other instruments affirming cultural rights recognized in the UNDRIP include ILO Convention No. 169, the 2001
UNESCO Universal Declaration on Cultural Diversity, the 2003 UNESCO Convention on the Safeguarding on
Intangible Cultural Heritage and the 2005 UNESCO Convention on the Protection and Promotion of the Diversity of
Cultural Expressions.
48 See, e.g., Human Rights Committee, General Comment No. 23: Article 27 (Rights of Minorities); Committee on
Economic, Social and Cultural Rights, General comment No. 21: Right of everyone to take part in cultural life; and
Committee on the Elimination of Racial Discrimination, General Recommendation 23 on the rights of indigenous
peoples. Also see Gilbert, this volume.
12
possible means – in order to ensure its preservation and transmission to future generations”. 49 The
ILA notes that cultural rights must “be safeguarded in a way that is consistent with the perspectives,
needs and expectations of the specific indigenous peoples”, and that “all the prerogatives that are
essential to preserve the cultural identity of indigenous peoples according to their own perspective
must be preserved, including, e.g., the right to use ancestral lands and natural resources according
to their own tradition”.50
Land rights
As the UN Permanent Forum on Indigenous Issues has observed, lands, territories and natural
resources “are of fundamental importance to indigenous peoples since they constitute the basis
of their life, existence and economic livelihood, and are the sources of their spiritual, cultural and
social identity”. Therefore, “[l]and rights, access to land and control over it and its resources are
central to indigenous peoples throughout the world, and they depend on such rights and access for
their material and cultural survival.”51
Accordingly, the UNDRIP articles on lands, territories and resources are among the most
important provisions in the Declaration. The central provision in the UNDRIP dealing with land rights
is Article 26, which affirms the right of indigenous peoples “to own, use, develop and control the lands,
territories and resources that they possess by reason of traditional ownership or other traditional
occupation or use, as well as those which they have otherwise acquired” (paragraph 2), as well as
their general right to the lands, territories and resources which they have traditionally owned, occupied
or used but no longer possess (paragraph 1). Article 28 provides that indigenous peoples have a right
to redress for lands, territories and resources taken from them without their consent in the past.52
Other articles in the Declaration recognize related rights, such as the right of indigenous peoples
not to be forcibly removed from their lands or territories (Article 10); their right to maintain and
strengthen their spiritual relationship with their traditional lands, territories and resources (Article
25); their right to determine and develop priorities and strategies for the development or use of their
lands and resources (Article 32); their right to the conservation and protection of the environment
and the productive capacity of their lands and resources (Article 29); their right to be secure in
the enjoyment of their own means of subsistence (Article 20); their right to the protection of their
traditional medicinal plants and animals (Article 24); and their right to maintain and develop their
traditional knowledge and cultural heritage associated with their lands and territories (Article 31).
The land and resource rights of indigenous peoples have been repeatedly recognized and
affirmed by international human rights courts and treaty bodies, including the Human Rights
49
50
51
52
ILA 2012b, para. 6. Also see ILA 2010, pp. 16-20; 2012a, pp. 16-23.
ILA 2012b, para. 6; and 2010, p. 51.
UNPFII 2007, paras. 4 and 6.
Additionally, Art. 27 requires States to establish and implement processes to recognize and adjudicate the rights of
indigenous peoples to their lands, territories and resources, including those that were traditionally owned, occupied or
used.
13
Committee, the Committee on the Elimination of Racial Discrimination, the Committee on Economic,
Social and Cultural Rights, the Inter-American Court of Human Rights and the African Commission
on Human and Peoples’ Rights. From the practice and jurisprudence of these bodies, it is clear
that indigenous peoples’ collective rights to their traditional lands, territories and resources are
protected by international treaty law in connection with a variety of other rights, including the right
to property, the right to cultural integrity, the right to self-determination and the general prohibition
of racial discrimination.53 Moreover, “[r]espect for the rights of indigenous peoples to ownership of,
control over and access to their traditional lands and natural resources is a precondition for the
enjoyment of other rights such as the rights to food, health, adequate housing, culture and free
exercise of religion”, as the former UN Special Rapporteur on the situation of human rights and
fundamental freedoms of indigenous people, Rodolfo Stavenhagen, has remarked.54
According to the ILA, “States must comply – pursuant to customary and applicable conventional
international law – with the obligation to recognise, respect, safeguard, promote and fulfil the rights of
indigenous peoples to their traditional lands, territories and resources, which include the right to restitution
of the ancestral lands, territories and resources of which they have been deprived in the past.” The
ILA underlines that “Indigenous peoples’ land rights must be secured in order to preserve the spiritual
relationship of the community concerned with its ancestral lands, which is an essential prerequisite to
allow such a community to retain its cultural identity, practices, customs and institutions.”55 The relevant
norms of customary international law also imply that indigenous peoples “must be allowed to manage
their lands autonomously and according to their customary rules; this prerogative is strictly connected
with the rights to self-determination and autonomy or self-government”.56
Reparation, redress and remedies
A number of provisions in the UNDRIP affirm the rights of indigenous peoples to reparation and
redress for human rights breaches they have suffered, including Articles 8(2), 11(2), 12(2), 20(2),
28, 32(3) and 40. Especially relevant in the context of World Heritage sites are Article 20(2),
affirming that “Indigenous peoples deprived of their means of subsistence and development are
entitled to just and fair redress”, and Article 28, affirming that
“Indigenous peoples have the right to redress, by means that can include restitution or,
when this is not possible, just, fair and equitable compensation, for the lands, territories
and resources which they have traditionally owned or otherwise occupied or used, and
which have been confiscated, taken, occupied, used or damaged without their free, prior
and informed consent.”
53
54
55
56
See Feiring 2013 and Gilbert, this volume.
Stavenhagen 2007, para. 43.
ILA 2012b, para. 7.
ILA 2010, p. 51.
14
Also important in the context of the World Heritage Convention is Article 32(3) of the UNDRIP,
which requires States to provide effective mechanisms for just and fair redress for any project
or activities affecting the lands, territories or resources of indigenous peoples, and to take
appropriate measures to mitigate adverse environmental, economic, social, cultural or spiritual
impacts arising from such activities.
As shown by the ILA, States have obligations under both treaty law and customary
international law to recognize and fulfil the rights of indigenous peoples to reparation and redress
for wrongs they have suffered.57 With regard to dispossession of indigenous peoples’ ancestral
lands, the kind of reparation that is generally preferable is the restitution of the lands, territories
and resources concerned. The reason for this is “that in most cases no form of compensation
is adequate to recompense effectively the deep spiritual significance that the motherland has
for the very cultural identity and – in many cases – even the physical existence of indigenous
communities.” Consequently, “restitution is the form of redress to be granted any time that it is
actually practicable.”58 In line with this, the Committee on the Elimination of Racial Discrimination
has called on States parties to the ICERD:
“to recognize and protect the rights of indigenous peoples to own, develop, control and
use their communal lands, territories and resources and, where they have been deprived
of their lands and territories traditionally owned or otherwise inhabited or used without their
free and informed consent, to take steps to return those lands and territories. Only when
this is for factual reasons not possible, the right to restitution should be substituted by the
right to just, fair and prompt compensation. Such compensation should as far as possible
take the form of lands and territories.” 59
Obligations and commitments of UNESCO
Promotion of respect for human rights is one of the fundamental objectives of the United Nations
system as a whole. As stated in Article 1(3) of the UN Charter, one of the main purposes of
the United Nations is “promoting and encouraging respect for human rights and for fundamental
freedoms for all without distinction as to race, sex, language, or religion.” This commitment has
been reaffirmed by the UN General Assembly, other UN organs and the individual Member States
in countless declarations, conventions and other instruments. It is also reflected in Article 1 of
UNESCO’s Constitution, which establishes the furthering of universal respect for human rights as
one of the fundamental purposes of the organization. An obligation and responsibility of UNESCO
to protect and promote human rights, and in particular the rights of indigenous peoples, is also
57 ILA 2010, p. 39 ff; ILA 2012b, para. 10.
58 ILA 2010, p. 41.
59 CERD 1997, para. 5 (General Recommendation 23 on the rights of indigenous peoples).
15
implicit in the organization’s expressed commitment to principles and values such as cultural
diversity, sustainable development and good governance.60
Moreover, the UNESCO General Conference has repeatedly emphasized that UNESCO will
incorporate a human rights-based approach into all its programs and activities.61 This means in
practice that “all activities should contribute to the realization of human rights” and that “human
rights principles and standards should guide the programming process in all fields and all stages,
including design, implementation, monitoring and evaluation”, as the UNESCO Strategy on Human
Rights notes.62 Programmes and activities should be conceived and designed to “contribute to the
development of the capacities of ‘duty-bearers’ to meet their obligations and of ‘rights-holders’ to
claim their rights”.63
As a Declaration of the UN General Assembly, the UNDRIP represents a solemn and highlevel commitment on the part of the United Nations to its provisions, within the framework of
the obligations established by the UN Charter to promote and protect human rights on a nondiscriminatory basis.64 This commitment is explicit in Articles 41 and 42 of the Declaration, which
require UN organs and specialized agencies to promote and act in accordance with the standards
expressed in the Declaration. According to Article 41, the organs and specialized agencies of the
United Nations system, as well as other intergovernmental organizations, shall establish ways
and means of ensuring the participation of indigenous peoples on issues affecting them and “shall
contribute to the full realization of the provisions of this Declaration through the mobilization, inter
alia, of financial cooperation and technical assistance”. Article 42 calls on the United Nations, its
bodies and specialized agencies to “promote respect for and full application of the provisions of
this Declaration and follow up the effectiveness of this Declaration”, including in their action at the
country level.
When the UNDRIP was adopted, UNESCO’s then Director-General, Koïchiro Matsuura,
officially welcomed it as “a milestone for indigenous peoples and all those who are committed to
the protection and promotion of cultural diversity and intercultural dialogue”, promising that the
60 See, e.g., UNESCO 2008, paras. 2, 3; UNESCO 2013c, para. 112. See, e.g., UNESCO Universal Declaration on
Cultural Diversity, Art. 4: “The defence of cultural diversity is an ethical imperative, inseparable from respect
for human dignity. It implies a commitment to human rights and fundamental freedoms, in particular the rights of
persons belonging to minorities and those of indigenous peoples…”; Plan of Implementation of the World Summit on
Sustainable Development, 2002, para. 5: “respect for human rights and fundamental freedoms, including the right to
development, as well as respect for cultural diversity, are essential for achieving sustainable development and ensuring
that sustainable development benefits all”; The future we want (Outcome document, United Nations Conference on
Sustainable Development, 2012), para. 49: “We stress the importance of the participation of indigenous peoples in the
achievement of sustainable development. We also recognize the importance of the United Nations Declaration on the
Rights of Indigenous Peoples in the context of global, regional, national and subnational implementation of sustainable
development strategies”. On the mutually reinforcing relationship between good governance and human rights, see
e.g. Human Rights Council Resolution 7/11 (2008), “The role of good governance in the promotion and protection of
human rights” and the United Nations Millennium Declaration, Sec. V.
61 UNESCO 2003; UNESCO 2008, paras. 6, 69; UNESCO 2013c, para. 91.
62 UNESCO 2003, pp. 2 and 5.
63 Ibid., p. 5. The UNESCO Strategy on Human Rights reflects the “UN Common Understanding on the Human RightsBased Approach to Development Cooperation”. See OHCHR 2006, Annex II.
64 Anaya 2008, para. 41.
16
UNDRIP would “undoubtedly provide the foremost reference point [for UNESCO] in designing and
implementing programmes with and for indigenous peoples”.65 On another occasion, the DirectorGeneral remarked:
“The 2007 Declaration acknowledges the significant place that indigenous cultures occupy
in the world and their vital contribution to our rich cultural diversity, which constitutes, in the
words of its preamble ‘the common heritage of humankind’. By approving this landmark
Declaration, the UN has taken a major step forward in the protection and promotion of
indigenous peoples’ rights… and has sent a clear signal in this regard to the international
community. It is now the responsibility of the United Nations, and in particular UNESCO…,
to ensure that this message is widely disseminated, understood and – most importantly –
translated into concrete policies that will enable indigenous peoples to participate fully and
equally in the national and international life.
Indeed, the new Declaration echoes the principles of the UNESCO Universal
Declaration on Cultural Diversity (2001) and related Conventions – notably the 1972 World
Heritage Convention, the 2003 Convention for the Safeguarding of the Intangible Cultural
Heritage, and the 2005 Convention on the Protection and Promotion of the Diversity of
Cultural Expressions. Each of these recognizes the pivotal role of indigenous peoples as
custodians of cultural diversity and biodiversity.” 66
UNESCO’s commitment to the UNDRIP was renewed by the General Conference in the
Organization’s Medium-Term Strategy 2014-2021, where it is declared that:
“The needs of indigenous peoples will also be addressed by UNESCO’s action. They
continue to be disproportionately represented among the most marginalized and
impoverished segments of society, while being recognized as the stewards of the major
part of the world’s biological, cultural and linguistic diversity… [T]he Organization will
implement the UNDRIP across all relevant programme areas.” 67
Already in 2011, UNESCO embarked on a process of developing a house-wide Policy on Indigenous
Peoples, which “will aim at positioning appropriately the Organization’s programmes, procedures
and activities with respect to the new institutional landscape that is emerging since the adoption of
the UNDRIP, and building awareness and providing guidance to staff and committees in order to
effectively implement the UNDRIP in all components of UNESCO’s work.” 68
However, UNESCO has noted that implementing the UNDRIP in all components of
the organization’s work presents a challenge due to the fact that there are “two layers of
intergovernmental governance within UNESCO on certain issues”. While the main decision-making
65
66
67
68
Matsuura 2007.
Matsuura 2008.
UNESCO 2013c, para. 20.
UNESCO 2014a, p. 3. As of February 2014, drafting of the Policy was still in its early stages (ibid.).
17
bodies of UNESCO are the General Conference of Member States and the Executive Board (a
smaller elected group of 58 Member States), some UNESCO Conventions and programmes have
their own independent intergovernmental governance structures. Although “in many cases the
same member states are sitting on these different bodies, they take decisions independently and
sometimes these decisions are contradictory”, according to UNESCO. “Thus, the effort of ensuring
that indigenous issues are accurately reflected in all programmes, conventions and activities
house-wide is complex, involving different semi-autonomous bodies.” 69
This challenge is clear in relation to the World Heritage Convention, a self-standing multilateral
treaty with its own States Parties and a separate intergovernmental governance structure.70 As further
discussed below, the implementation of the Convention falls far short of the principles and requirements
of the UNDRIP and there is a long history of human rights violations against indigenous peoples in
relation to World Heritage sites. There can be no doubt, however, that the obligations of UNESCO
to protect and promote the rights of indigenous peoples, both under its Constitution and under the
UNDRIP, fully apply to the World Heritage Convention and its governing bodies. The Convention
was adopted by UNESCO’s General Conference pursuant to its functions under the UNESCO
Constitution, and the Convention explicitly states that its central decision-making body, the World
Heritage Committee, is “established within UNESCO” (Article 8.1). The Convention’s Secretariat, the
World Heritage Centre, is under the authority of UNESCO’s Director-General, who appoints its staff
pursuant to Article 14 of the Convention. It is located within UNESCO and is not autonomous of the
organization.71 Moreover, the Convention’s membership is today almost identical to that of UNESCO
and, with only one exception, all States Parties to the Convention are also Members of UNESCO.72
Implementation of the World Heritage Convention
The main purpose of the World Heritage Convention, which embodies the idea that some places
are so special and important that their protection is not only the responsibility of the States in which
they are located but also a duty of the international community as a whole, is the identification
and collective protection of cultural and natural heritage sites of “outstanding universal value”
(OUV). While no definition of this elusive term is provided in the Convention, the World Heritage
Committee has adopted the following definition, contained in the Operational Guidelines for the
Implementation of the World Heritage Convention: “Outstanding Universal Value means cultural
and/or natural significance which is so exceptional as to transcend national boundaries and to be
of common importance for present and future generations of all humanity.” 73
69
70
71
72
UNESCO 2014a, p. 2.
On the relationship between the World Heritage Committee and UNESCO see Vrdoljak 2008a, p. 224 f.
See Vrdoljak 2008b, p. 248 f.
As of 15 August 2014, there were 192 States Parties to the World Heritage Convention compared to 195 Member
States of UNESCO. The only State Party that is not a UNESCO Member is the Holy See.
73 Operational Guidelines, para. 49. The Operational Guidelines have been regularly revised throughout the history of the
Convention. Unless otherwise noted, references in this chapter refer to the July 2013 version.
18
The World Heritage Committee has also developed a set of ten specific criteria (six relating
to cultural and four to natural values), at least one of which a given site must meet in order to be
considered of OUV for the purposes of the Convention.74 Additionally, to be deemed of OUV, a site
must meet the conditions of integrity75 and authenticity76 (the latter only in the case of cultural sites),
and must have an adequate protection and management system to ensure its safeguarding.77 If
these requirements are met, the site qualifies for inscription on UNESCO’s World Heritage List, i.e. for
designation as a cultural, natural or “mixed” (cultural and natural) World Heritage site (see Figure 1).78
While the decision to include sites on the World Heritage List is the prerogative of the World Heritage
Committee, sites can only be listed following a formal nomination by the State Party in whose territory
they are located, and after having been included on the respective State Party’s so-called ‘Tentative
List’ (of potential World Heritage sites) for at least one year.79 All nominated sites are visited and
evaluated by the World Heritage Committee’s advisory bodies IUCN and/or ICOMOS80 before the
Committee decides whether or not they will be inscribed on the World Heritage List. The Committee
can also refer a nomination back to the State Party for additional information or defer a nomination for
more in-depth assessment or study, or a substantial revision by the State Party.81
Once listed, a World Heritage site must be managed and protected with a view to maintaining
its OUV as recognized by the World Heritage Committee. This is the responsibility of the State
Party (or States Parties in the case of transboundary/transnational sites) in whose territory the
site is located. States Parties have an obligation to regularly prepare reports about the state of
conservation of the World Heritage sites in their territories and the protection measures put in
place to ensure their safeguarding (“Periodic Reporting”).82 Additionally, the World Heritage
Committee’s advisory bodies and the World Heritage Centre report to the Committee on the state
of conservation of specific World Heritage sites that are considered to be under threat (“Reactive
Monitoring”). In this context, they can collect and make use of information received from sources
other than the States Parties concerned, including information received from indigenous peoples
74 Contained in ibid., para. 77. The ten criteria have been occasionally revised by the Committee to reflect the evolution of
the World Heritage concept. Now numbered (i) through (x), they were labeled cultural criteria (i)-(vi) and natural criteria
(i)-(iv) until 2004.
75 See ibid., paras. 78, 87-95. Integrity is a measure of the wholeness and intactness of the natural and/or cultural
heritage and its attributes.
76 See ibid., paras. 78-86. In essence, a cultural heritage site meets the condition of authenticity if it is ‘genuine’ (i.e. if it
is truly what it claims to be) and if the information sources about its heritage values may be understood as credible or
truthful. See Jokilehto 1999, p. 11 f.
77 For details, see Operational Guidelines, paras. 78, 96-119.
78 See ibid., paras. 45-47. A sub-category of cultural World Heritage sites are cultural landscapes, which represent the
“combined works of nature and of man” mentioned in Article 1 of the World Heritage Convention. The cultural landscapes
category was introduced by the World Heritage Committee in 1992. See Annex 3 of the Operational Guidelines.
79 Operational Guidelines, paras. 24(a), 63 and 65.
80 The World Heritage Committee is supported by three advisory bodies: the International Union for Conservation of
Nature (IUCN), the International Council on Monuments and Sites (ICOMOS) and the International Centre for the
Study of the Preservation and Restoration of Cultural Property (ICCROM). On the roles of the advisory bodies, see
Operational Guidelines, paras. 30-37 and the chapter by Larsen, Oviedo and Badman in this volume
81 Operational Guidelines, Chapter III.G.
82See Operational Guidelines, para. 15 and Chapter V.
Figure 1: Types of World Heritage sites (‘properties’). Adapted from UNESCO et al. 2011
Figure 2: Summary of the different steps in the nomination process and the main responsibilities of the State
Party and the UNESCO World Heritage Committee. Source: UNESCO et al. 2011
19
20
or non-governmental organizations, and may make recommendations on how to mitigate threats
and outline corrective measures.83
Lack of implementation of the UN Declaration on the Rights of Indigenous
Peoples in the context of the World Heritage Convention
The World Heritage Convention can play, and in some cases undoubtedly has played, a positive
role for indigenous peoples by helping them protect their lands and territories, cultures and heritage
from development pressures such as urban encroachment or extractive industry activities. A recent
example is the incorporation of the uranium-rich Koongarra area into the Kakadu National Park
World Heritage site, at the joint request of the State Party and the indigenous landowners, in effect
barring future mineral development in the area.84 World Heritage sites can also create business
and employment opportunities for indigenous peoples, for instance in the tourism sector or directly
in the management of sites. Further, in monitoring the state of conservation of inscribed World
Heritage sites, the World Heritage Committee and/or its advisory bodies, IUCN and ICOMOS,
may call on States Parties to improve indigenous peoples’ participation in the management and
decision-making processes of particular sites or to enhance benefit-sharing mechanisms.85 These
interventions have become more frequent in recent years and have in some cases contributed to
positive change for indigenous peoples.86
However, throughout the history of the World Heritage Convention there have been frequent
objections raised by indigenous peoples regarding violations of their rights in the implementation of
the Convention, not only at the domestic level in the nomination and management of specific World
Heritage sites but also at the international level in the practice of the World Heritage Committee, its
advisory bodies IUCN and ICOMOS, and its Secretariat. Human rights concerns include, inter alia,
frequent disrespect for indigenous peoples’ participatory rights in the nomination and inscription
of sites, marginalization of indigenous peoples in the on-site decision-making and management
of World Heritage areas, violations of their right to share equitably in tourism benefits, a common
lack of consultation with indigenous peoples by monitoring and site evaluation missions and a
serious lack of transparency in some of the Convention’s processes. Moreover, in some World
83 Operational Guidelines, Chapter IV.A.
84 See O’Brien, this volume.
85 See, for example, World Heritage Committee Decisions 37 COM 7B.30, para. 8b (Talamanca Range-La Amistad
Reserves / La Amistad National Park, Costa Rica / Panama); 34 COM 7B.4, para. 6 (Ngorongoro Conservation Area,
United Republic of Tanzania); or 35 COM 7B.34, para. 4d (Manu National Park, Peru).
86 For instance, the World Heritage Committee, IUCN and the World Heritage Centre in 2014 urged the Government of
Kenya to ensure full and effective participation of the indigenous Endorois in the management and decision-making
of Lake Bogoria National Reserve (see UNESCO 2014b, p. 111-113 and Committee Decision 38 COM 7B.91). This
appears to have facilitated the signing of a Memorandum of Understanding in May 2014 between Kenyan government
agencies and representatives of the Endorois which notes that the involvement of the Endorois in the management
of the Reserve is paramount, sets out a framework for the co-management of the Reserve by Kenyan government
agencies and the Endorois and recognizes that any decision-making concerning the Endorois people must have their
free, prior and informed consent (for details on this case, see Sing’Oei, this volume).
21
The World Heritage Committee at its 35th Session in Paris in June 2011, following the decision
to incorporate the Koongarra area into the Kakadu World Heritage site in Australia.
In the center front row Jeffrey Lee, the senior traditional owner of the Koongarra area. Photo: Stefan Disko
Heritage areas indigenous peoples are essentially treated as threats to their own territories and tight
restrictions and prohibitions are placed on traditional land-use practices such as hunting, gathering,
farming or animal husbandry, in violation of indigenous peoples’ cultural and subsistence rights.
These restrictions and prohibitions have had severe consequences for some indigenous peoples’
food security, health and well-being and can in some cases be directly linked to the World Heritage
status.87 The World Heritage List also contains several protected areas from which indigenous peoples
have been forcibly removed,88 in some instances even with the intention of “justifying inscription of
an area on the World Heritage List as a place of natural importance devoid of what is perceived as
the negative impact of local inhabitants”, as a former staff member of the World Heritage Centre has
87 See, for instance, the case of the Ngorongoro Conservation Area, where a ban on subsistence cultivation imposed in
2009 resulted in a serious situation of hunger and malnutrition that affected most of the area’s 70,000 residents and
led to the deaths of several people (Olenasha, this volume).
88 For some examples, see the articles in this volume by Kidd (Bwindi Impenetrable National Park), Muchuba (KahuziBiega National Park), Buergin (Thungyai - Huai Kha Khaeng Wildlife Sanctuaries), Sing’Oei (Lake Bogoria National
Reserve) and Olenasha (Serengeti National Park).
22
remarked.89 This legacy remains completely unaddressed by the World Heritage Committee although
many of the affected indigenous peoples continue to suffer from the consequences to this day.
The violation of indigenous rights in World Heritage sites and in the implementation of the World
Heritage Convention is facilitated by the fact that “the World Heritage Convention does not give
any recognition to indigenous peoples’ rights over cultural and natural heritage”, as noted in the
ILA’s study on the rights of indigenous peoples.90 Rather, “the Convention entrusts territorial States
with all responsibilities concerning proposals for inscription of cultural and natural properties on the
World Heritage List… and relating to the management of such properties after their inscription”.91
While the lack of recognition of indigenous peoples’ rights in the text of the Convention can be
explained by its early adoption, in 1972, when international law in this area was little developed,
the subsequently devised and frequently updated Operational Guidelines, also, do not contain any
provisions on the rights of indigenous peoples, nor other references to human rights. The ILA study
therefore concludes that “the consideration devoted to indigenous peoples’ rights in the context of
the operation of the World Heritage Convention is far from being adequate”.92
To its credit, in 2007 the World Heritage Committee adopted a “Strategic Objective” to “Enhance
the role of communities in the implementation of the World Heritage Convention”, in recognition of “the
critical importance of involving indigenous, traditional and local communities in the implementation of
the Convention”.93 In a 2011 Decision, the Committee also encouraged States Parties to “[i]nvolve
indigenous peoples and local communities in decision making, monitoring and evaluation of the state
of conservation of [World Heritage sites]” and to “[r]espect the rights of indigenous peoples when
nominating, managing and reporting on World Heritage sites in indigenous peoples’ territories”.94
However, the Convention’s Operational Guidelines continue to be entirely inadequate for ensuring
the meaningful participation of indigenous peoples and respect for their rights in Convention
processes. Rather than upholding the right of indigenous peoples to effectively participate in decisionmaking affecting them, the Operational Guidelines merely “encourage” States Parties to ensure the
participation of “a wide variety of stakeholders” in the processes of the Convention:
“States Parties to the Convention are encouraged to ensure the participation of a wide
variety of stakeholders, including site managers, local and regional governments, local
communities, non-governmental organizations (NGOs) and other interested parties and
partners in the identification, nomination and protection of World Heritage properties.” 95
89 Titchen 2002.
90 ILA 2012a, p. 17.
91Ibid.
92Ibid.
93 See World Heritage Committee Decisions 31 COM 13A and 31 COM 13B. This fifth strategic objective, also known
as the “fifth C”, was adopted by the World Heritage Committee during the Chairmanship of Sir Tumu Te Heuheu,
Paramount Chief of Ngāti Tūwharetoa, the first indigenous person to hold this position (representing New Zealand).
94 Decision 35 COM 12E, para. 15.
95 Para. 12. Other provisions on the involvement of local communities and other stakeholders include paras. 40, 64, 123
and 211. The only provision that is couched in slightly more obligatory language relates to nominations of cultural
landscapes to the World Heritage List, which “should be prepared in collaboration with and the full approval of local
communities” (Annex 3, para. 12).
23
This approach, which subsumes indigenous peoples into a wider category of stakeholders such
as local communities, NGOs and other interested parties, negates indigenous peoples’ status and
rights under international law, including their right to self-determination and their collective rights to
their lands, territories and resources. In accordance with the principles of the UNDRIP, indigenous
peoples must be treated as rights-holders and key decision-makers whose consent has to be
sought in the case of activities affecting their rights, and not merely lumped together with a wide
variety of ‘stakeholders’, who may or may not be included in decision-making processes.
The first concerted effort of indigenous peoples to enhance the consideration given to their
rights in the implementation of the World Heritage Convention was in 2000 during the 24th session
of the World Heritage Committee in Cairns, Australia. A forum of indigenous peoples held in
conjunction with that session called for the establishment of a “World Heritage Indigenous Peoples
Council of Experts (WHIPCOE)” as a consultative body to the Committee out of concern about
the “lack of involvement of indigenous peoples in the development and implementation of laws,
policies and plans… which apply to their ancestral lands within or comprising sites now designated
as World Heritage areas”.96 The forum proposed that WHIPCOE should complement the work of
the Committee’s existing advisory bodies and provide “expert Indigenous advice on the holistic
knowledge, traditions and cultural values of Indigenous Peoples relative to the implementation of
the World Heritage Convention, including current operational guidelines”.97 Among other things, it
was thought that a body such as WHIPCOE was needed “to advise on the appropriate identification,
evaluation and management of ‘mixed’ properties and ‘cultural’ properties with indigenous
associations and the identification, management and possible renomination of properties listed for
their ‘natural’ World Heritage values that may also hold indigenous values”.98
However, although the proposal was considered by the World Heritage Committee at its 24th
and 25th sessions, the Committee did not approve the establishment of WHIPCOE as a consultative
body or network reporting to it. The stated reasons for this decision included “a number of legal
concerns and issues relating to the funding, legal status, role and relationships (with the States
Parties, Advisory Bodies, World Heritage Committee and World Heritage Centre)” and the fact
that “[s]ome members of the Committee questioned the definition of indigenous peoples and the
relevance of such a distinction in different regions of the world.”99 The former Chairperson of the
World Commission on Protected Areas, Adrian Phillips, attributed the decision to a “dismissive
attitude towards indigenous peoples’ issues” among some of the Committee members.100
In 2002, Mirarr senior traditional owner Yvonne Margarula from the Kakadu National Park World
Heritage area in Australia submitted a statement on behalf of the Mirarr people to the inaugural
session of the UN Permanent Forum on Indigenous Issues which recommended that the Permanent
Forum undertake an independent study of indigenous peoples and World Heritage. The statement
suggested that the study analyze the effectiveness of the World Heritage Convention in the protection
96 UNESCO 2001, p. 2.
97 Ibid., p. 3.
98 Ibid., p. 5.
99 UNESCO 2002, p. 57.
100 Quoted in IUCN 2002, p. 15.
24
of indigenous peoples’ sacred sites and living traditions; the potential impact of the World Heritage
Committee’s then ongoing review of its Operational Guidelines on indigenous peoples living in World
Heritage areas; and indigenous peoples’ representation and input into the World Heritage Committee’s
decision-making processes.101 Following the Permanent Forum’s first session, indigenous peoples
raised concerns on many occasions with the Forum about violations of their rights in World Heritage
sites and in the implementation of the Convention. Having a mandate to provide expert advice and
recommendations on indigenous issues to programmes and agencies of the United Nations, and to
promote respect for the UNDRIP and follow up its effectiveness,102 in 2010 the Permanent Forum for
the first time sent a representative to a session of the World Heritage Committee. The purpose of this
participation was to inform the Committee about the numerous concerns related to World Heritage
sites that indigenous organizations had brought to the Forum’s attention since its first session in 2002.
In a written submission to the Committee, the Forum highlighted, among other things, that it had
received complaints about a “list of indigenous sites inscribed in the World Heritage List without the
adequate participation and involvement of indigenous peoples”.103
In 2011, a broad coalition of indigenous organizations and NGOs submitted a joint statement
to the World Heritage Committee, as well as the Permanent Forum, expressing “serious concern
about the continuous and ongoing disrespect of the principle of free, prior and informed consent by
UNESCO’s World Heritage Committee when it designates sites in Indigenous peoples’ territories
as ‘World Heritage sites’”. The joint statement noted:
“There are numerous examples of Indigenous sites on the World Heritage List that have
been inscribed without the free, prior and informed consent of the Indigenous peoples
concerned. In many cases Indigenous peoples were not even consulted when their
territories were designated as World Heritage sites, although this designation can have
far-reaching consequences for their lives and human rights, their ability to carry out their
subsistence activities, and their ability to freely pursue their economic, social and cultural
development in accordance with their right of self-determination.”104
The joint statement also denounced the fact that three World Heritage nominations under
consideration by the Committee at the time (Western Ghats, Sangha Trinational and Kenya
Lake System in the Great Rift Valley) had been prepared without the meaningful involvement or
consultation of affected indigenous peoples and that insufficient consideration had been given to
indigenous peoples’ cultural values and their role as stewards of the respective places. It urged
101 Mirarr People 2002.
102 See UN ECOSOC Resolution E/2000/22, para. 2; and UNDRIP, Art. 42.
103 UNPFII 2010b.
104 Endorois Welfare Council et al. 2011. The statement also expresses concern, in response to the 2010 designation of
the Ngorongoro Conservation Area as a cultural World Heritage site (in recognition of archaeological but not indigenous
cultural values), “that the concepts of ‘outstanding universal value’, ‘integrity’ and ‘authenticity’ are interpreted and
applied in ways that are disrespectful of Indigenous peoples and their cultures, inconsiderate of their circumstances
and needs, preclude cultural adaptations and changes, and serve to undermine their human rights.” For more detail on
the case in point, see Olenasha, this volume.
25
Screenshot of the World Heritage Centre’s website. Nomination documents are not made public by UNESCO
prior to the decision of the World Heritage Committee, and can only be accessed with a password
the Committee not to approve these nominations until the indigenous peoples concerned had
been adequately consulted and involved and their free, prior and informed consent obtained.
The objections expressed in the joint statement did not, however, receive any noteworthy
consideration by the World Heritage Committee. Kenya Lake System was inscribed on the
World Heritage List in 2011, while Western Ghats and the Sangha Trinational were inscribed
in 2012 despite the concerns not having been resolved in any of the three cases.105 In the
latter two instances, the indigenous peoples concerned had not even been able to review the
final versions of the nomination documents, which had not been made publicly available by the
relevant States Parties or UNESCO before the World Heritage Committee took its decision.106
The fact that there is no requirement under the Operational Guidelines for World Heritage
nominations and other key documents such as state of conservation reports and monitoring
mission reports to be made publicly available before the World Heritage Committee takes
a decision is of serious concern to indigenous peoples.107 It has in many cases prevented
105 For more detail, see the articles in this volume by Sing’Oei Abraham; Bijoy; and Amougou-Amougou and Woodburne.
106 IWGIA et al. 2012.
107 While nomination documents are never disclosed by UNESCO before a site is inscribed (see screenshot of UNESCO
website), in 2013 and 2014 the World Heritage Committee encouraged States Parties to authorize UNESCO to make
reports relating to the state of conservation of their World Heritage sites publicly accessible in order to contribute to
improved transparency in the reactive monitoring process (see Decisions 37 COM 7C and 38 COM 7). Although
most reports are now published, this is not a requirement and some reports by State Parties, as well as some of the
monitoring mission reports, continue to be withheld from the public, in particular those of a contentious character.
26
indigenous peoples from reviewing such documents and providing their perspectives to the
Committee, despite the fact that the proposals contained in these documents may have farreaching implications for their rights and interests.108 This remarkable lack of transparency
in the processing of World Heritage nominations, as well as other processes of the World
Heritage Convention, has been strongly criticized by indigenous organizations as inconsistent
with the right of indigenous peoples to participate in decision-making affecting them, as well
as with sustainable development principles and State obligations to ensure public participation
in environmental decision-making.109
Response of human rights bodies
International and regional human rights bodies have, on countless occasions, expressed concerns
about the impacts of the establishment and management of specific conservation areas on
indigenous peoples and their ability to pursue traditional ways of life. They have underlined, among
other things, that conservation areas established in the ancestral territories of indigenous peoples
must allow for sustainable economic and social development that is compatible with the cultural
characteristics and living conditions of the indigenous peoples concerned, that the management
of such areas must ensure the effective participation of indigenous peoples in decisions affecting
them, and that redress must be provided for dispossessions and land alienation suffered by
indigenous peoples as a result of the establishment of such areas.110 There are also numerous
cases in which human rights bodies have expressed concern over violations of indigenous rights
in conservation areas that were recognized as World Heritage sites or included on States Parties’
tentative lists of potential World Heritage sites, and have urged the respective States Parties to
address these concerns.111
108 Until the mid-1990s, the Operational Guidelines even promoted non-transparent and non-participatory nomination
processes, requiring that: “In all cases, so as to maintain the objectivity of the evaluation process and to avoid possible
embarrassment to those concerned, States Parties should refrain from giving undue publicity to the fact that a property
has been nominated for inscription pending the final decision of the Committee on the nomination in question” (former
para. 14). While this provision was deleted in 1996, similar thinking continues to be contained in Annex 6 of the
Guidelines (Procedures of ICOMOS for the evaluation of cultural sites), where States Parties “are requested to ensure
that ICOMOS evaluation missions are given a low profile so far as the media are concerned… [P]remature publicity
can cause embarrassment both to ICOMOS and to the World Heritage Committee.”
109 See The future we want, para. 43 (Outcome document of the 2012 UN Conference on Sustainable Development) and
the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice
in Environmental Matters.
110 See, e.g., CERD 2004, para. 13; CERD 2007, para. 22; CERD 2008, para. 19; CESCR. 2012, paras. 22, 29; or ACHPR
2009.
111 See, e.g., CERD 2012 (Kaeng Krachan National Park, Thailand); CCPR 2012, para. 24, CERD 2011, para. 17; and
ACHPR 2011 (Kenya Lake System, Kenya); ACHPR 2000, pp. 12-16 (Bwindi Impenetrable National Park, Uganda;
Kahuzi-Biega National Park, DRC; Dja Faunal Reserve, Cameroon; Ngorongoro Conservation Area, Tanzania; among
other sites); Kothari 2008, para. 104 (Chitwan National Park, Nepal); Anaya 2012a, para. 13 and 2012c, para. 50
(Quebrada de Humahuaca, Argentina).
27
In recent years, due to the many concerns raised by indigenous peoples in relation
to World Heritage sites around the world, several international human rights bodies and
mandate-holders have drawn attention to systemic shortcomings in the implementation of the
World Heritage Convention and called on the World Heritage Committee, UNESCO and the
Advisory Bodies to take corrective action. Back in 2005, before the adoption of the UNDRIP,
the UN General Assembly had already made the following recommendation to UNESCO,
contained in the Programme of Action for the Second International Decade of the World’s
Indigenous People:
“UNESCO is urged to establish mechanisms to enable indigenous peoples to participate
effectively in its work relating to them, such as the… nomination of indigenous sites in the
World Heritage List and other programmes relevant to indigenous peoples.”112
Since the General Assembly’s adoption of the UNDRIP in 2007, all three of the UN mechanisms
with specific mandates concerning the rights of indigenous peoples (UNPFII, EMRIP and Special
Rapporteur) have urged the World Heritage Committee to bring the implementation of the World
Heritage Convention into line with the requirements of the UNDRIP, and to adopt changes to the
existing procedures and Operational Guidelines to that end. In his 2012 report to the General
Assembly, Special Rapporteur James Anaya highlighted that:
“… there is still no specific policy or procedure which ensures that indigenous peoples can
participate in the nomination and management of these sites [World Heritage sites within
or near their traditional territories, or otherwise affecting them]. The Operational Guidelines
for Implementation of the World Heritage Convention, which set out the procedure for the
inscription of properties on the World Heritage list and the protection and conservation of
sites, are silent on the issue of participation by indigenous peoples. The guidelines provide
only that States parties to the Convention are encouraged to ensure the participation of
a wide variety of stakeholders in the identification, nomination and protection of World
Heritage properties.” 113
In 2013 the Special Rapporteur sent a letter to the World Heritage Committee drawing
attention to a number of concerns raised by indigenous peoples regarding respect for their
rights and worldviews in the nomination and management of World Heritage sites and the
overall implementation of the Convention. He encouraged the Committee to undertake a
review of its procedures and consider reforms to address these concerns, “emphasiz[ing]
112 UNGA 2005, para. 16.
113 Anaya 2012b, para. 35. With regard to the nomination of sites, the Special Rapporteur further criticized the fact that
“States are not specifically required to provide any information on the indigenous peoples and local communities living
in or around a site they nominate for World Heritage designation, or review the kind of impact a site might have on the
rights of these groups” and that States are not required to “provide information about whether affected peoples have
been asked about and agree with the nomination” (ibid. para. 36).
28
the importance of consulting with indigenous peoples throughout the entirety of such a
review process”.114
The UN Expert Mechanism on the Rights of Indigenous Peoples, a subsidiary body of the
Human Rights Council, has offered the following advice to the World Heritage Committee, drawing
attention to Articles 41 and 42 of the UNDRIP:
“… UNESCO must enable and ensure effective representation and participation of
indigenous peoples in decision-making related to the World Heritage Convention…
[R]obust procedures and mechanisms should be established to ensure that indigenous
peoples are adequately consulted and involved in the management and protection of
World Heritage sites, and that their free, prior and informed consent is obtained when their
territories are being nominated and inscribed as World Heritage sites…
[The Expert Mechanism] Encourages the World Heritage Committee to establish a process
to elaborate, with the full and effective participation of indigenous peoples, changes to the
current procedures and operational guidelines and other appropriate measures to ensure
that the implementation of the World Heritage Convention is consistent with the United
Nations Declaration on the Rights of Indigenous Peoples and that indigenous peoples can
effectively participate in the World Heritage Convention’s decision-making processes.”115
Similarly, the UN Permanent Forum on Indigenous Issues has encouraged the World Heritage
Committee to revise the Convention’s procedures and Operational Guidelines in order to ensure
that the rights of indigenous peoples are respected and that their livelihoods and their tangible and
intangible heritage are protected in World Heritage areas. The Permanent Forum has expressed
its availability to assist in the review and revision of the Operational Guidelines and has also
recommended that UNESCO invite indigenous representatives and experts to contribute to these
efforts.116 Additionally, the Permanent Forum has suggested that “the initial efforts to establish a
World Heritage Indigenous Peoples’ Council of Experts (WHIPCOE) be revisited and efforts to
set up an appropriate mechanism whereby indigenous experts can provide advice to the World
Heritage Committee and the World Heritage Centre be revived”.117
Other bodies that have called on the World Heritage Committee to align the implementation
of the World Heritage Convention with the UNDRIP include the African Commission on Human
and Peoples’ Rights (ACHPR) and the IUCN World Conservation Congress. The ACHPR, the
human rights body of the African Union that oversees the implementation of the African Charter
on Human and Peoples’ Rights, adopted a specific resolution on the protection of indigenous
114 See Appendix 5 of this volume and Human Rights Council 2014, p. 127, containing hyperlinks to both the letter of the
Special Rapporteur and the reply received from the World Heritage Centre (Case No. OTH 10/2013). Also see UN
Doc. A/HRC/27/52/Add.4.
115 EMRIP 2012, p. 7 (Proposal 9: World Heritage Committee). Similarly, EMRIP 2011, Annex, para. 38.
116 UNPFII 2011a, paras. 40-42; UNPFII 2011b.
117 UNPFII 2010b; 2011b.
29
peoples’ rights in the context of the World Heritage Convention in 2011, in which it expresses
concern over the fact that “there are numerous World Heritage sites in Africa that have been
inscribed without the free, prior and informed consent of the indigenous peoples in whose
territories they are located and whose management frameworks are not consistent with the
principles of the UN Declaration on the Rights of Indigenous Peoples”.118 In particular, the
resolution condemned the World Heritage Committee’s 2011 listing of Lake Bogoria National
Reserve in Kenya as a World Heritage site (as part of the “Kenya Lake System in the Great Rift
Valley”) without involving the indigenous Endorois community in the decision-making process
and without obtaining their free, prior and informed consent.119 The ACHPR urged the World
Heritage Committee:
“to review and revise current procedures and Operational Guidelines… in order to ensure
that the implementation of the World Heritage Convention is consistent with the UN
Declaration on the Rights of Indigenous Peoples and that indigenous peoples’ rights, and
human rights generally, are respected, protected and fulfilled in World Heritage areas;”
[and]
“… to consider establishing an appropriate mechanism through which indigenous peoples
can provide advice to the World Heritage Committee and effectively participate in its
decision-making processes”.120
Additionally, the ACHPR criticized IUCN for having recommended, in its capacity as an Advisory
Body to the World Heritage Committee, the inscription of Lake Bogoria on the World Heritage List
despite the lack of involvement of the Endorois in the nomination process. It therefore “urge[d]
IUCN to review and revise its procedures for evaluating World Heritage nominations as well as the
state of conservation of World Heritage sites, with a view to ensuring that indigenous peoples are
fully involved in these processes, and that their rights are respected, protected and fulfilled in these
processes and in the management of World Heritage areas”.121
This led, in 2012, to the adoption of a resolution entitled “Implementation of the United Nations
Declaration on the Rights of Indigenous Peoples in the context of the UNESCO World Heritage
118 Resolution on the protection of indigenous peoples’ rights in the context of the World Heritage Convention and the
designation of Lake Bogoria as a World Heritage site (ACHPR 2011), Preamble. The full text of the resolution is
reproduced in Appendix 1 of this volume.
119 The World Heritage listing of Lake Bogoria happened less than two years after the ACHPR’s landmark ruling in the
Endorois case (ACHPR 2009), in which it condemned the forcible eviction of the Endorois during the creation of the
Lake Bogoria reserve in the 1970s. The ACHPR ordered Kenya to “Recognise rights of ownership to the Endorois
and Restitute Endorois ancestral land” and to “Pay adequate compensation to the community for all the loss suffered”.
The ACHPR also underlined that, in the case of any development projects that would have a major impact within the
Endorois territory, “the State has a duty not only to consult with the community, but also to obtain their free, prior, and
informed consent, according to their customs and traditions” (para. 291). For details on the case, see Sing’Oei, this
volume.
120 ACHPR 2011, paras. 2, 3.
121 Ibid., para. 4.
30
Convention” by the IUCN World Conservation Congress, IUCN’s highest decision-making body.122
The resolution notes that the World Conservation Congress shares the concerns of the ACHPR
and requests that IUCN’s Director-General and Council (the principal governing body of IUCN)
develop clear policy and practical guidelines to ensure that the principles of the UNDRIP are
respected in IUCN’s work as an Advisory Body and that indigenous peoples are fully informed
and consulted when sites are evaluated or missions undertaken on their territories.123 In addition,
the resolution urges the World Heritage Committee to revise the Operational Guidelines to
ensure that indigenous peoples’ rights and all human rights are upheld and implemented in the
management and protection of existing World Heritage sites and that no World Heritage sites
are established in indigenous peoples’ territories without their free, prior and informed consent.
It further urges the Committee to “work with State Parties to establish mechanisms to assess
and redress the effects of historic and current injustices against indigenous peoples in existing
World Heritage sites” and to “establish a mechanism through which indigenous peoples can
provide direct advice to the Committee in its decision-making processes in a manner consistent
with the right of free, prior and informed consent and the right to participate in decision making
as affirmed in the [UNDRIP]”.124
Conclusion
The repeated violations of indigenous peoples’ rights in World Heritage sites and in the
processes of the World Heritage Convention are, in many ways, the result of the inadequacy
of the Convention’s procedures and operational guidelines. They have drawn the attention of
international human rights bodies and mechanisms and stand in sharp contrast to UNESCO’s
mission, the principles upon which the Organization was founded and the overarching values
which it promotes. The violations are damaging the reputation and credibility of UNESCO as
an institution committed to furthering respect for human rights, cultural diversity, sustainable
development and intercultural understanding and threaten to overshadow the positive role that
the World Heritage Convention can undoubtedly play for indigenous peoples by helping them
protect their lands, cultures and heritage. They are also incompatible with UNESCO’s vision
that World Heritage sites should “serve as an example, and become conservation models for all
sites, including those of more local interest”.125
While it is clear that awareness of the problems and the need for corrective action is
growing within UNESCO, there are several factors that pose significant obstacles to aligning the
implementation of the Convention with the principles and requirements of the UNDRIP. Chief
122 IUCN 2012. For the full resolution, see Appendix 2 of this volume.
123 IUCN 2012, para. 1.a. IUCN has begun to act on this request by making a number of improvements to its practice in
evaluating World Heritage nominations. It has also concluded a review of its World Heritage evaluation processes in
relation to questions related to communities and rights. See IUCN 2013, pp. ii-iii and the chapter by Larsen, Oviedo
and Badman in this volume.
124 IUCN 2012, para. 2.
125 UNESCO 2004, para. 39.
31
among these may be the fact that, for many if not most States Parties to the Convention, including
many of those serving as Members of the World Heritage Committee, the main interest in the
World Heritage Convention today lies in the prestige, tourism profits and economic development
that World Heritage sites can bring to a country or region. This has resulted in a climate and
culture within the Committee where economic and political interests all too often override all other
concerns, including human rights principles and even conservation considerations. The Director of
the World Heritage Centre, Kishore Rao, recently remarked:
“[The] question is whether safeguarding our common heritage for present and future
generations is the real motivation for identifying and adding sites to the World Heritage List,
or has it been eclipsed by other considerations, such as economics and national prestige…
[T]he general impression is often of intense pressure to have sites designated as World
Heritage because of the expected economic benefits or the prestige involved. Perhaps we
are failing in our narrative to effectively communicate a coherent message about the true
objectives of the Convention…” 126
At the same time, the World Heritage Committee acts, in many ways, as if the Convention existed
in a vacuum and pays little to no regard to international legal standards developed in other
intergovernmental forums or the legal obligations of States under other international instruments.
In particular, the Committee has been oblivious to the developments in human rights law since
the Convention’s adoption in 1972, as evident from the fact that the Operational Guidelines to this
day contain no references whatsoever to human rights standards or instruments.127 Although the
Member States of UNESCO have on many occasions jointly reaffirmed their commitment to human
rights through resolutions, declarations and conventions adopted by the General Conference, these
commitments have not been translated into the World Heritage context. For example, the UNESCO
Strategy on Human Rights, adopted by the General Conference in 2003, has had no perceptible
impact on the implementation of the World Heritage Convention. This lack of coherence and synergy
is clearly not in the interests of UNESCO, and may in fact be contrary to its Constitution, according to
which the end goal of any international collaboration under the umbrella of UNESCO is the furthering
of universal respect for justice, the rule of law and human rights.128 As the international law expert
Luke T. Lee once wrote, in reference to Article 1 of the UNESCO Constitution:
“[T]he purpose of UNESCO is to further justice, the rule of law, human rights, and
fundamental freedoms – a legal concept, objectively definable. International collaboration
in the fields of education, science and culture is but a means to an end. To replace the
126 UNESCO 2013a, p. 83.
127 Noteworthy in this context is para. 44 of the Operational Guidelines, which contains a list of the Conventions the
Committee considers relevant to the protection of cultural and natural heritage. None of the international human rights
instruments are included in this list.
128 Art. 1 of the UNESCO Constitution.
32
end by the means, as has been done in many of its recent activities, would exceed the
competence of UNESCO.” 129
There have been some efforts by UNESCO in recent years to enhance respect for indigenous
peoples’ rights in the implementation of the World Heritage Convention.130 In November 2011, when
UNESCO launched the process to develop the planned house-wide Policy on Indigenous Peoples,
which, once adopted, shall provide “guidance to staff and committees in order to effectively implement
the UNDRIP in all components of UNESCO’s work”,131 Director-General Irina Bokova remarked that
UNESCO, as the Secretariat for the World Heritage Convention, was “consciously working to improve
and promote the free, prior and informed consent and the full and effective participation of indigenous
peoples in the establishment and management of [World] Heritage sites”.132
The following year, the World Heritage Convention’s 40th anniversary, celebrated by UNESCO
under the theme of “World Heritage and Sustainable Development: the Role of Local Communities”,
provided a framework for increased attention on the experiences of indigenous peoples with
the Convention. UNESCO noted in a statement at the 2011 session of the Permanent Forum
on Indigenous Issues that the anniversary would provide an excellent opportunity for indigenous
peoples to engage with UNESCO and the World Heritage Committee and its Secretariat, “in order
to address concerns that have been raised within the framework of the Permanent Forum and to
work towards a constructive solution to the challenges that the [UNDRIP] brings to the international
community as a whole”.133 UNESCO also dedicated an edition of its quarterly magazine World
Heritage to the issue of “World Heritage and Indigenous Peoples” during the anniversary year,
including, among other things, an interview with the then Chair of the Permanent Forum, Myrna
Cunningham.134 At the Closing Event of the 40th anniversary in November 2012 in Kyoto, Japan,
the Director of the World Heritage Centre called on the World Heritage Committee to seriously
consider the Permanent Forum’s appeal “for the principle of free, prior and informed consent to
be introduced within the Operational Guidelines”.135 UNESCO’s Assistant Director-General for
Culture, Francesco Bandarin, encouraged the Committee on the same occasion to reconsider the
proposal to create a World Heritage Indigenous Peoples Council of Experts (WHIPCOE) in light of
the adoption of the UNDRIP in 2007.136
129 Lee 1965, p. 740.
130 Additionally, there have been efforts by the Advisory Bodies to promote the use of human rights-based approaches
in the World Heritage context. See Larsen, Oviedo and Badman, this volume; Ekern et al. 2012; and Sinding-Larsen
2012.
131 UNESCO 2014a, p. 3 (emphasis added).
132 UNESCO 2011b, at 00:06:20. Also see Bandarin 2012, p. 327: “The principle of free, prior and informed consent,
as outlined in UNDRIP… will have major importance in UNESCO’s policy development process with respect
to indigenous peoples. In particular, as the current OGs of the World Heritage Convention do not explicitly make
reference to the free, prior and informed consent of indigenous communities, continuing efforts will be made to
respond to this challenge.”
133 UNESCO 2011c.
134 Cunningham 2012.
135 UNESCO 2013a, p. 84.
136 Ibid., p. 43.
33
The 40th anniversary also provided the context for the organization of an “International Expert
Workshop on the World Heritage Convention and Indigenous Peoples” by the Danish Agency for
Culture, the Government of Greenland and IWGIA. Held in Copenhagen in September 2012, the
workshop involved indigenous experts and human rights experts from around the world, as well as
representatives of the Permanent Forum, EMRIP, UNESCO, IUCN and ICOMOS. Participants also
included several of the authors of articles contained in this book. The workshop resulted in a “Call
to Action” containing recommendations on how to align the implementation of the World Heritage
Convention with the UNDRIP, as well as a set of proposed amendments to the Convention’s
Operational Guidelines aimed at ensuring respect for indigenous peoples’ right to free, prior and
informed consent in the context of World Heritage designations.137 The workshop recommendations
were presented to UNESCO and the States Parties of the World Heritage Convention during
the Closing Event of the anniversary in Kyoto, Japan. Subsequently, the World Heritage Centre
brought the results of the workshop to the attention of the World Heritage Committee’s 37th session
in June 2013 in Phnom Penh, Cambodia, suggesting that the Committee consider implications for
future revisions of the Operational Guidelines.138
Unfortunately, preliminary discussions by the Committee in a working group during the Phnom
Penh session revealed significant reservations and opposition among some Committee members
to adding provisions related to indigenous peoples and their rights to the Operational Guidelines,
including from governments that voted for the adoption of UNDRIP and have repeatedly
expressed their commitment to advancing recognition and respect for the rights of indigenous
peoples as enshrined in the UNDRIP.139 The Committee decided, however, to “re-examine the
recommendations of this meeting [the Copenhagen expert workshop] following the results of the
discussions to be held by the Executive Board on the UNESCO Policy on indigenous peoples”.140
One can therefore only hope that the adoption of the UNESCO Policy, together with the
momentum generated by the World Conference on Indigenous Peoples, will provide the
necessary impetus for the World Heritage Committee to finally adopt a human rights-based
approach to its activities affecting indigenous peoples and take the necessary steps to ensure
that the nomination, designation, management and protection of World Heritage sites consistently
occurs in accordance with the principles affirmed in the UNDRIP. Considering the high visibility
of the World Heritage Convention and its role as one of UNESCO’s flagship programs, it is clear
137 For the Call to Action see Appendix 3 of this volume. The proposed amendments to the Operational Guidelines are
available at http://www.iwgia.org/news/search-news?news_id=678 and http://whc.unesco.org/en/events/906/. For the
report of the expert workshop see Disko and Tugendhat 2013.
138 UNESCO 2013d, p. 26 (Draft Decision 37 COM 5A, para. 6) and UNESCO 2013e, paras. 12, 13.
139 Personal observation by Stefan Disko. A main reason for the reservations and opposition of governments appears to
be doubts about the concept and definition of ‘indigenous peoples’, which seem particularly prevalent in the African
context. To clarify such doubts, the “Pan-African Forum for a Culture of Peace”, organized jointly by UNESCO, the
African Union (AU) and the Government of Angola in March 2013, made the following recommendation: “The AU,
supported by the United Nations system, should ensure the wide dissemination of the reports of the [ACHPR], and
the relevant clauses of the African Charter, which clarify the definition and status of indigenous peoples in the African
context, so as to help dispel widespread misunderstandings and misinterpretations” (UNESCO 2013b, p. 11). For the
respective reports see ACHPR 2005 and ACHPR 2006.
140 Decision 37 COM 12.II, para. 7.
34
that this is crucial not only for the credibility of the Convention itself but also for the credibility of
UNESCO as a whole. 
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38
39
Indigenous Peoples and Protected Areas:
Towards Reconciliation?
Marcus Colchester
“I have come here to tell you that it is the order of the Administration that you move out of
Game Reserve No. 2. The reason for this order is that you are destroying the game. You may
go into the Police Zone and seek work on the farms South of Windhoek, or elsewhere. You
must take your women and children with you, also your stock... You will have to be out of the
Game Reserve the 1st May, 1954. If you are still in the Game Reserve on that day you will be
arrested and will be put in gaol. You will be regarded as trespassers... None of you will be
allowed to return to Game Reserve No. 2 from Ovamboland... If you have something to say I
will listen but I wish to tell you that there is no appeal against this order. The only Bushmen
who will be allowed to continue to live in the Game Reserve are those in the employ of the
Game Wardens. Convey what you have heard to your absent friends and relatives.”
H. Eedes, Native Commissioner of Ovamboland,
to the Hai//om people of Etosha 19541
Introduction: conservation and culture
A
s human societies have moved further and further away from a direct relationship with their
environment, their tendency to treat it as a ‘resource’ to be controlled, exploited and managed
has grown correspondingly. Classical conservation, which seeks to isolate natural areas from human
influence, is one expression of this alienation. To the many peoples of the world who remain close to
and live from their ancestral lands, waters and territories, these notions remain foreign. Such indigenous
peoples, as they are now classed by international law, relate to their territories in a much more integrated
and spiritually informed way, many of them seeing what city people call ‘nature’ to be part of their very
lives and being. While policy dialogues today may focus on the economies, laws and institutions that
now need to be reformed to accommodate indigenous peoples’ rights, it is well to recall the very wide
conceptual gulf that remains between indigenous peoples and most conservationists about how humans
1
Quoted in Widlok 2009.
Left: Roosevelt Arch at the north entrance to Yellowstone National Park, established in 1872 as the world’s first national park
and one of the first sites to be inscribed on the World Heritage List in 1978. Conceived as an uninhabited ‘wilderness’ area,
the creation of the Park led to the forced removal of hundreds of indigenous people. The Yellowstone model remained the
dominant approach to conservation for the next 140 years and until 1992 provided the basis for the definition of a ‘national
park’ officially used by IUCN. Photo: Harvey Barrison (CC BY-SA 2.0)
40
should relate to their environment.2 At the same time, it has belatedly been recognized that indigenous
peoples’ knowledge may be invaluable to ‘resource management’.3
One of the oldest ways by which urbanised societies have sought to manage nature is through
the creation of what we now call ‘protected areas’. The approach has very deep roots. Indeed,
the idea of setting aside areas to preserve wild species can be traced back to the royal hunting
reserves of the Assyrians in 700 BCE, is later apparent in Persian traditions, and had found its
way into India by the time of Ashoka in 400 BCE. These ideas were brought into Europe following
the conquests of Alexander the Great. Royal hunting reserves were recorded during the reign of
Emperor Charlemagne and the first ‘forests’, as they came to be called, were set up in Britain after
the Norman Conquest. These royal hunts, game reserves set aside for the ‘sport of kings’, were
much resented by local people as they imposed severe restrictions on their livelihoods and forbade
the expansion of their farms. The first such area established in England nearly 1,000 years ago,
and still known as the ‘New Forest’, required the forced removal of 2,000 villagers from their land.4
The ills of urban society have long spawned a longing for escape and, with the growth
of industrialism, notions of wilderness preservation became prominent as poets, recreational
hunters and nature-lovers left the cities to rejuvenate their souls. While 19th century Europe
celebrated its industrial triumphs in grand exhibitions, the newly expanded United States of
America celebrated its conquests of the Wild West with the setting aside of the world’s first
National Parks. These Parks were designed to preserve the country’s most dramatic landscapes
as ‘wilderness’ areas, which the law was to define as places where ‘man himself is a visitor who
does not remain’. It is important to recall, however, that both the Yosemite and the Yellowstone
National Parks in the USA required the forced removal of hundreds of indigenous people, who
were repeatedly attacked, killed and chased off their ancestral lands by the US Army in order to
maintain the Parks free from human settlement for the enjoyment of visiting tourists.5
The Yellowstone model remained the dominant approach to conservation for the next 140
years. When the International Union for Conservation of Nature (IUCN) developed a global
system for protected areas, the presumption was that these areas should be owned by the
State and run by government agencies. National Parks were expressly defined by IUCN as
areas “where one or several ecosystems are not materially altered by human exploitation and
occupation...” and where “the highest competent authority of the country has taken steps to
prevent or eliminate as soon as possible exploitation or occupation of the whole area...”.6 With
funds from the development agencies and the advice of international conservation organizations
and legal consultants, these norms thus came to be instituted in the policies, laws and
governance regimes of the majority of developing countries. Protected areas became fortresses
to be protected from local inhabitants.7
2
3
4
5
6
7
Stevens 1997.
Berkes 1999.
Colchester 2003; Griffin 2008.
Kemf 1993; Keller and Turek 1998.
West 1991, p. xvii.
Brockington 2002.
INDIGENOUS PEOPLES AND PROTECTED AREAS: TOWARDS RECONCILIATION?
41
Problems of exclusion
As a result of the concerted efforts of a global movement determined to achieve the goals of
conservation through the establishment of protected areas, today some 12.9% of the Earth’s
landmass and 6.3% of its territorial waters have been designated as over 160,000 Protected Areas.
It is estimated that as much as half of these protected areas have been established on indigenous
peoples’ lands without their agreement. The result has been serious social problems for affected
peoples and long-standing abuse of their rights.
Summarising an extensive body of literature, we can note that protected areas have caused:
the denial of rights to land, territories and use and access to natural resources; denial of political
rights and the validity of customary institutions; the shattering of kinship systems and settlement
patterns; the erosion of informal social networks, fundamental to local economies; undermining of
livelihoods; loss of property; denial of compensation; impoverishment; the disruption of customary
systems of environment management; the criminalization of daily life, making people into ‘poachers’,
‘encroachers’ and ‘squatters’ on their own land; their subjection to petty tyrannies by park guards;
forced resettlement; the destruction of leadership systems, for if the community leaders accept
relocation they are accused of betraying their people but if they resist they are proved powerless;
the breaking of symbolic ties to environment; the weakening of cultural identity; intensified pressure
on natural resources outside the protected areas; popular unrest, resistance, ‘incendiarism’, social
conflict and ensuing repression.8 These problems amount to systematic violations of indigenous
peoples’ rights as recognized in international law.
A ‘new paradigm’
The exclusionary approach to conservation has always had its critics but, as the ex-Chairman of
the World Commission on Protected Areas later ruefully noted:
“At least until around the mid-1960s, the climate in which protected areas were set up
around the world favoured a top-down and rather exclusive view of protected areas. Setting
up large game parks without too much concern for the impact on local people fitted well
with the autocratic style of colonial administration (especially in Africa); and it was equally
at home in the early days of post-colonial government which followed many of the same
styles of administration… Certainly the opinions and rights of indigenous peoples were of
little concern to any government before about 1970; they were not organized as a political
force as they are now in many countries.” 9
8
9
Chatty and Colchester 2002; Colchester 2004; Dowie 2009.
Phillips 2003, p. 3.
42
Despite this political reality, opposing voices have repeatedly spoken up in favour of alternative
forms of conservation that protect indigenous rights. The IUCN’s ‘Kinshasa Resolution’ of 1975
recognized the importance of traditional ways of life and land ownership, and called on governments
to maintain and encourage customary ways of living. It urged governments to devise means by
which indigenous peoples could bring their lands into conservation areas without relinquishing their
ownership, use and tenure rights. It also noted that indigenous peoples should not normally be
displaced from their traditional lands by protected areas, nor should protected areas be established
without adequate consultation with the peoples to be directly affected.10
Since then, urged by a growing clamour from indigenous peoples and their supporters,11
the IUCN has passed dozens of Resolutions, at its four-yearly World Conservation Congresses,
which call for conservation efforts to respect indigenous peoples’ rights, as set out in existing
and emerging international laws, both inside and outside protected areas.12 In 1994, the IUCN
revised its protected area system to allow indigenous peoples, as well as others, to own and
manage protected areas.13 In 1996, the WWF adopted a progressive policy on indigenous peoples
in accordance with the then draft UN Declaration on the Rights of Indigenous Peoples.14 In 1999,
the World Commission on Protected Areas adopted guidelines for the co-management of protected
areas, on agreements between indigenous peoples and conservation bodies, on indigenous
participation and on a recognition of indigenous peoples’ rights to ‘sustainable, traditional use’ of
their lands and territories.15
A significant breakthrough for indigenous peoples came at the Vth World Parks Congress, held
in Durban, South Africa, in 2003, which was attended by some 150 indigenous representatives.
The Durban Accord and Action Plan adopted at the Congress was promoted as a “new paradigm”
for protected areas by “equitably integrating them with the interests of all affected people”.16 The
Accord celebrates the conservation successes of indigenous peoples and urges the involvement
of indigenous peoples in establishing and managing protected areas and their participation in
decision-making on a fair and equitable basis in full respect of their human and social rights.
To implement this new vision, the Durban Action Plan requires that the rights of indigenous
peoples be recognized and guaranteed in relation to natural resources and biodiversity conservation.
Protected area systems must be reformed to take account of these rights, forced resettlement should
be strictly eliminated and national authorities should carry out “reviews of conservation initiatives
including innovative and traditional/customary governance types…”. Targets were set such that:
“All existing and future protected areas shall be managed and established in full compliance
with the rights of indigenous peoples, mobile peoples and local communities. Protected
10
11
12
13
14
15
16
Colchester 2004.
IAIP 1998.
Balasinorwala, Kothari and Goyal 2004; FPP 2012.
IUCN 1994.
WWF 1996.
Beltran 2000.
Durban Accord.
43
areas shall have representatives chosen by indigenous peoples and local communities in
their management proportionate to their rights and interests. Participatory mechanisms for
the restitution of indigenous peoples’ traditional lands and territories that were incorporated
in protected areas without their free and informed consent [should be] established and
implemented by 2010.” 17
International environmental law
The past 30 years have also witnessed important developments in international environmental
law, which has unevenly but significantly incorporated language related to indigenous peoples. For
example, at the Earth Summit in 1992, indigenous peoples were recognized as a Major Group that
should participate in sustainable development. Agenda 21, the action plan adopted at the Summit,
devoted a whole chapter to ‘Indigenous Peoples’ noting that:
“Indigenous peoples and their communities and other local communities have a vital role in
environmental management and development because of their knowledge and traditional
practices. States should recognise and duly support their identity, culture and interests and
enable their effective participation in the achievement of sustainable development.”
The Earth Summit also witnessed the agreement of the Convention on Biological Diversity (CBD),
which enjoins each State party to the Convention:
“Subject to its national legislation, [to] respect, preserve and maintain knowledge,
innovations and practices of indigenous and local communities embodying traditional
lifestyles relevant for the conservation and sustainable use of biological resources...”
(Article 8(j))
“[To] Protect and encourage customary use of biological resources in accordance with
traditional cultural practices that are compatible with conservation or sustainable use
requirements.” (Article 10(c))
The Conference of the Parties (COP) to the CBD meets annually to assess progress in
implementing the Convention and makes Decisions, which are authoritative interpretations of how
the Convention should be applied. The CBD has often been criticised for not giving proper attention
to rights nor, in particular, to the importance of secure tenure. However, sustained advocacy by
indigenous peoples has led to some important gains, including with respect to protected areas. At
its 7th meeting, the COP explicitly welcomed the outcomes of the Durban World Parks Congress
and issued Decision 7.23 of the Conference which:
17 Durban Action Plan.
44
“23. Recalls the obligations of the Parties towards indigenous and local communities in
accordance with article 8(j) and related provisions and notes that the establishment,
management and planning of protected areas should take place with the full and effective
participation of, and full respect for the rights of, indigenous and local communities
consistent with national law and applicable international obligations.” (Emphasis added)
The same COP also adopted a ‘Multi-Year Programme of Work’ that included a Goal and Target on
indigenous peoples as follows:
“Goal 2.2 To enhance and secure involvement of indigenous and local communities and
relevant stakeholders.”
“Target: Full and effective participation by 2008, of indigenous and local communities, in full
respect of their rights and recognition of their responsibilities, consistent with national law and
applicable international obligations, and the participation of relevant stakeholders, in the
management of existing, and the establishment of new, protected areas.” (Emphasis added)
From principles to practice
Slower progress has been made, however, in putting such ideals into practice. An early effort to
reconcile protected areas with local people, promoted since the 1970s under UNESCO’s ‘Man and
Biosphere Programme’, proposed the zoning of protected areas by surrounding strictly protected
core zones from which humans were excluded with buffer zones where limited livelihoods would be
managed but permitted. The experience has been mixed but not encouraging as most buffer zones
have been managed as ‘projects’ by conservationists with little experience of social development
who, as one reviewer noted, “frequently pursued objectives which were inconsistent with the
aspirations of the very people they were trying to help”. Tellingly, the same IUCN study concluded
that better results have “not been short-term aid projects but initiatives taken by local community
groups or resource managers who have made creative attempts to solve the day to day problems
which they faced”.18
Somewhat better outcomes have come from so-called ‘co-management’, where local people and
national authorities work together to run protected areas.19 The success of co-management, from
indigenous peoples’ point of view, has depended largely on the extent to which the peoples’ rights are
respected and they have real authority over decision-making. As one IUCN study concurred:
“Co-management is often hailed as the appropriate middle ground, within which the needs
of all stakeholders can be negotiated and acceptable compromises achieved [but]… this
18 Sayer 1991.
19 Borrini-Feyerabend 1997; Weber, Butler and Larson 2000; Oviedo, Maffi and Larsen 2000; Eghenter 2000.
45
would seem to be only part of the solution. Co-management strategies can only be effective
if they are accompanied by parallel efforts to address issues of tenure in the related territory.
If tenure arrangements do not secure the interests of local users, there is no incentive to
practice sustainable use.” 20
Successive reviews carried out by the Forest Peoples Programme and indigenous partners over
the past 15 years in Latin America, Central Africa and South and Southeast Asia have found that,
while there are some encouraging examples that show that it is possible to reconcile indigenous
peoples’ rights with protected areas, on balance conservationists are failing to implement the
accords they have signed up to. Protected areas continue to be imposed in violation of indigenous
peoples’ rights and cause suffering, impoverishment and conflict.21 A recent review by the CBD
itself of progress in implementing its plan of action on protected areas notes that less than a third
of countries report significant progress towards participation in protected areas.22
There are various reasons for this failure. One is that conservation continues to be funded
from the top down, with strong links to the private sector and the global tourism industry, whose
interests, consciously or unconsciously, are allowed to dominate decision-making and maintain the
status quo.23 The second major reason is that national polices, laws and institutions continue to be
framed by the old exclusionary approach to conservation and the actors empowered by these laws
now resist reforms in line with international laws and agreements.24 Finally, there remains a lack of
accessible mechanisms by which indigenous peoples can gain redress for these injustices. This in
itself is a continuing abuse of the peoples’ right to a remedy.25
In 2011, in response to yet another Resolution passed at the 2008 World Conservation Congress
calling for a mechanism to reconcile protected areas with indigenous peoples’ rights, indigenous
peoples and the IUCN’s Commission on the Environment, Economy and Social Policy, with the
help of IUCN and Forest Peoples Programme, convened a high-level meeting at a Conference,
entitled ‘Sharing Power’, held in Whakatane, New Zealand. The meeting agreed to set up the
so-called ‘Whakatane Mechanism’ by which concerned indigenous peoples, conservationists
and State agencies could work together to reconcile protected areas with indigenous rights. The
mechanism contemplates field assessments made jointly by the various parties to assess a specific
local situation, joint reporting of the findings, followed by national workshops involving all relevant
parties to hammer out agreements on what should be done next. The Mechanism is designed to
give initiative to the affected peoples and resolve problems through shared learning and dialogue.
So far two successful pilot efforts have been pioneered under the Mechanism, with the Ogiek
people of Mount Elgon National Park in Kenya and the Karen and Hmong peoples of the Ob Luang
National Park in Thailand. In the Ogiek case, an agreement has now been forged not to require
20
21
22
23
24
25
Forrest 1999, p. 12.
Gray, Parellada and Newing 1997; Colchester and Erni 2000; Nelson and Hossacks 2003; Colchester et al. 2008.
CBD 2012.
Jeanrenaud 2002; Brocking ton 2002; Chapin 2004.
Colchester et al. 2006.
MacKay 2002.
46
their forced removal from the Park, by itself a significant gain as they have already twice had
their houses torched and been forcibly expelled since the Park was established. In Thailand, the
assessment showed that moves to recognize indigenous farmers’ rights in the Park under a project
entitled Joint Management of Protected Areas (JoMPA) had reduced conflict and the national
workshop agreed both to continue this approach in Ob Luang and extend it to other protected areas
in the country. The need to reform national conservation laws to consolidate the joint management
approach was also highlighted.26 The Whakatane Mechanism now needs to be much more widely
activated. It constitutes an important if modest step towards providing indigenous peoples with the
means of redress that they rightfully insist upon.
Indigenous peoples, sustainable use and international environmental law
The holy grail of the environment movement is sustainability. If resource use outside of protected areas
were sustainable, there would be little need for protected areas at all. However, in the meanwhile,
protected areas are promoted in order to ensure that at least some areas and the biodiversity they
contain are sustained. If indigenous peoples’ rights are to be recognized in these areas, conservationists
worry that they too will over-exploit resources. Thus, whereas human rights laws affirm indigenous
peoples’ rights and the CBD requires State parties to protect and encourage sustainable customary use,
there remains a lack of agreement as to how such sustainability will be assessed.
Conservation biologists themselves recognize the limits of scientific knowledge on sustainability.
For example, the extent to which populations of even large mammals are viable in the face of
hunting is largely unknown and research continues to throw up surprises about how species
and ecosystems relate.27 Faced with this lack of knowledge, many conservationists invoke the
Precautionary Principle arguing that natural areas should be off limits until sustainability can be
assured, although such a simplistic approach itself has its critics.28
The exclusionary approach entails its own risks. Not only is it likely to perpetuate conflict
with indigenous peoples but the exclusion of customary resource use may even cause a loss
of biodiversity and other conservation values, for example, where shifting cultivation generates
a greater variety of eco-types in a landscape than if the whole area is climax forest or where
stock-grazing or controlled burning generates greater biodiversity in grasslands and semi-deserts.
Indeed, recent scientific studies show that forests, including those set aside as protected areas,
when under community control are more effective for conservation, provide better livelihoods and
retain greater forest cover than forests and national parks under State control.29
There are also challenges at the level of international law that remain to be addressed. We
should recall that when indigenous peoples began to have recourse to the international human
26
27
28
29
Whakatane Mechanism 2012.
Redford and Stearman 1993; Robinson and Bennett 2000.
Cooney and Dickson 2005.
Nepstad et al. 2006; Chhatre and Agrawal 2009; Nelson and Chomitz 2011; Persha, Agrawal and Chhatre 2011;
Porter-Bolland et al. 2011.
47
An assessment meeting between Ogiek community members, Kenya Wildlife Service, Kenya Forest Service and
other officials during the pilot Whakatane Assessment in Mount Elgon. Photo: Emmanuel Freudenthal
rights system to bolster their claims for self-determination, they had themselves to recognize that
these universal principles also apply to their own societies. The UN Declaration on the Rights
of Indigenous Peoples, which emphasises the collective rights of indigenous peoples, expressly
notes that ‘in the exercise of the rights enunciated in the present Declaration, human rights and
fundamental freedoms of all shall be respected’ (UNDRIP Article 46.2). Indigenous peoples have
thus recognized in their own statements that there may be certain beliefs, customs and practices in
their own societies that offend against these norms and need to be extirpated by their own efforts.30
There has not yet been a comparable detailed discussion about the relationship between
indigenous peoples and international environmental law. Are indigenous peoples, both as selfgoverning polities and as human beings, not also subject to international environmental law like
everyone else? Do they not also need to regulate their use of the environment to ensure that
natural resources are not over-exploited?31
The question is more legally complex than might first be assumed. Unlike much of the international
law that has evolved on indigenous rights over the past 30 years, most environmental laws were
developed without indigenous participation. Moreover, most international environmental laws, including
the CBD, stress the principle of sovereignty over natural resources and the United Nations has always
30 Tebtebba 2010.
31 Metcalf 2005.
48
recognised that both nations and peoples have permanent sovereignty over natural resources.32 So, just
as States insist that international environmental laws apply to them subject to their own laws and other
priorities, so indigenous (and other) peoples can claim the same discretion. In line with legal norms,
environmental laws cannot be imposed without taking into account other laws, including international
human rights law and indigenous peoples’ own systems of customary law.
Consequently, rather than impose international environmental standards on indigenous peoples
without their participation or consent, it has proven more effective to work with indigenous peoples
to find practical solutions. It has thus become the norm of the International Whaling Commission,
for example, to negotiate hunting quotas for bowhead whales with the Inuit peoples of Alaska,
thereby ensuring that whale populations and traditional practices crucial to cultural identity are
both sustained. Likewise, after lengthy debate, it has been recognised by the Arctic Council that
effective management of natural resources in the Arctic requires the direct involvement of the
region’s indigenous peoples, who attend the Council’s meetings as permanent participants, albeit
lacking full voting powers.33
Recent judgments and decisions of international human rights courts and treaty bodies help
chart the way forward. States must respect indigenous peoples’ rights to their lands and territories,
to represent themselves through their own institutions (and not those chosen by the State) and to
give or withhold their free, prior and informed consent to measures that may affect their rights.34
Very exceptionally, where there is ‘compelling public interest’, there may be cause for a State to limit
indigenous peoples’ rights, and conceivably conservation might be one such reason. Even in such
cases, however, the State cannot simply invoke the public interest but must also satisfy a number
of additional requirements. Any acquisition of lands or use of those lands must be sanctioned by
previously established law and in accordance with due process. The State must show that the
intervention is ‘necessary’ and has been designed to be the least restrictive from a human rights
perspective. It must likewise show that the means employed are closely tailored to the goal and
that the cost to, or impact on, the affected people is ‘proportional’ to the benefit being sought.
And, finally, the proposed intervention should not ‘endanger their very survival as a people’.35 In
order to ensure ‘survival as a people’, four additional elements are required: effective participation
in decision-making, which includes their right to Free, Prior and Informed Consent; participatory
environmental and social impact assessments that conform to international standards and best
practice and are undertaken in a culturally appropriate manner; mandatory benefit-sharing; and,
finally, that negative impacts are effectively avoided or mitigated.36
In the absence of such reasons or measures, indigenous peoples do have the right to refuse
protected areas on their lands and to demand the restitution of lands taken for protected areas
without their consent. The African Commission on Human and Peoples’ Rights affirmed the right
of the Endorois pastoralists of Kenya to own their customary lands and to ‘free, prior and informed
32
33
34
35
36
Daes 2004.
McIver 1997; Selin and Selin 2008.
Colchester 2010.
IACHR 2008.
MacKay 2009.
49
consent’, rights which were violated when they were removed from their lands to make way for
a protected area (the Lake Bogoria Game Reserve, now part of the ‘Kenya Lake System’ World
Heritage site). The Commission recognised the right of the Endorois to restitution of their lands and
compensation for losses and damages.37
Implications for UNESCO
Given the advances already made in global laws and policy, it seems reasonable to suggest that the
most important steps now needed to reconcile protected areas with indigenous peoples lie at the
national and local level. It is important, too, to celebrate the progress that has been made, without
pretending that all solutions are perfect or easy.38 National laws need to be revised to recognise
indigenous peoples’ rights. Conservation laws need to be changed to recognise community
ownership and control of protected areas. Conservation agencies need to be overhauled so that
governance systems accommodate indigenous autonomy and allow indigenous peoples’ own
knowledge and practices to be reaffirmed. Government staff need to be retrained so that they act
as advisers and facilitators, collaborating with indigenous peoples instead of imposing exclusionary
laws on them.
In putting principles and revised laws into practice at the local level, there will be real dilemmas
and difficulties.39 Even where new policies and laws have been adopted, government capacity and
willingness to apply them may be lacking. Indigenous peoples’ own economies, values, knowledge
systems and institutions are changing. Their customary systems have been weakened or are becoming
less relevant to current situations. The landscapes they inhabit are often shared with other peoples
who also have rights. Environments, too, are under stress and constantly changing. Principles may be
valuable but simple prescriptions can never be a substitute for locally informed action.
In its Universal Declaration on Cultural Diversity, UNESCO notes the importance of States
adopting inclusive ways of encouraging cultural diversity through policies of cultural pluralism.
Article 2 of the Declaration notes:
“In our increasingly diverse societies, it is essential to ensure harmonious interaction
among people and groups with plural, varied and dynamic cultural identities as well as
their willingness to live together. Policies for the inclusion and participation of all citizens
are guarantees of social cohesion, the vitality of civil society and peace. Thus defined,
cultural pluralism gives policy expression to the reality of cultural diversity. Indissociable
from a democratic framework, cultural pluralism is conducive to cultural exchange and to
the flourishing of creative capacities that sustain public life.”
37 Sing’Oei 2011a, 2011b.
38 Kemf 1993; MacKay 2002; Tammemagi 2012.
39 Jentoft, Minde and Nilson 2003; McShane et al. 2010; Schmidt-Soltau and Brockington 2007.
50
The Declaration explicitly recognises the importance of securing human rights as guarantees of
cultural diversity and provides not only for the recognition of the individual human rights of persons
but also for the recognition of the, implicitly collective, human rights of indigenous peoples. Article
4 of the Declaration thus notes:
“The defence of cultural diversity is an ethical imperative, inseparable from respect for
human dignity. It implies a commitment to human rights and fundamental freedoms, in
particular the rights of persons belonging to minorities and those of indigenous peoples. No
one may invoke cultural diversity to infringe upon human rights guaranteed by international
law, nor to limit their scope.”
For indigenous peoples, the key collective rights that have been recognised are their right as peoples
to self-determination, as affirmed in the UN Declaration on the Rights of Indigenous Peoples in line
with Article 1 of the International Covenant on Civil and Political Rights, and also their right to the
collective ownership, control, management and use of their lands, territories and resources.
One of the underlying intentions of the Convention Concerning the Protection of the World
Cultural and Natural Heritage, and of listing cultural and natural heritage areas of outstanding value
as ‘World Heritage Sites’, is to ensure that these areas are managed and protected to the highest
international standards.40
In 1992, the World Heritage Committee adapted its Operational Guidelines for the Implementation
of the World Heritage Convention in order to allow for the inscription of ‘cultural landscapes’, sites
that are recognized as ‘combined works of nature and humankind’. With this change the Committee
greatly enhanced the possibility of recognizing and protecting the role of indigenous peoples in
managing, shaping and creating their lands and resources within World Heritage areas. These
Guidelines have been periodically updated, most recently in 2013.41
Paragraph 12 of the latest version of the Operational Guidelines for the Implementation of the
World Heritage Convention notes:
“States Parties to the Convention are encouraged to ensure the participation of a wide
variety of stakeholders, including site managers, local and regional governments, local
communities, non-governmental organizations (NGOs) and other interested parties and
partners in the identification, nomination and protection of World Heritage properties.” 42
40 See for example, World Heritage Committee Decision 35 COM 12E (2011): “15. Recalling that being a signatory to
the World Heritage Convention entails certain responsibilities, including… management of World Heritage properties
according to the highest international standards…, encourages States Parties to: e) Involve indigenous peoples and
local communities in decision making, monitoring and evaluation of the state of conservation of the properties and
their Outstanding Universal Value and link the direct community benefits to protection outcomes, f) Respect the rights
of indigenous peoples when nominating, managing and reporting on World Heritage sites in indigenous peoples’
territories;”
41 See http://whc.unesco.org/en/guidelines.
42 Doc. WHC. 13/01, July 2013. See also articles 64, 119, 123 and 211.
51
However, the World Heritage Convention and its Operational Guidelines make no mention of
indigenous peoples or their rights to their lands and territories, so requirements for their effective
participation are somewhat limited. In the past, attempts to appeal to UNESCO to ensure that
governments respect indigenous peoples’ rights in the nomination of areas for World Heritage
listing have been rebuffed.43
The connection between indigenous lands and cultural integrity, as well as the need to
protect both, has been recognized by UNESCO numerous times in the past. For example, the
1981 UNESCO Declaration of San José on Ethno-Development and Ethnocide in Latin America
provides that:
“For the Indian peoples, the land is not only an object of possession and production. It
forms the basis of their existence, both physical and spiritual, as an independent entity.
Territorial space is the foundation and source of their relationship with the universe and the
mainstay of their view of the world.”
It continues that:
“The Indian peoples have a natural and inalienable right to the territories that they possess
as well as the right to recover the land taken away from them. This implies the right to the
natural and cultural heritage that this territory contains and the right to determine freely how
it will be used and exploited.” 44
It is time such rights were explicitly recognised in the World Heritage Convention’s Operational
Guidelines. 
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54
55
Indigenous Peoples’ Heritage and Human Rights
Jérémie Gilbert
Introduction
I
n November 2011, the African Commission on Human and Peoples’ Rights (ACHPR) took the
unusual decision of adopting a specific resolution condemning the inscription of Lake Bogoria National
Reserve in Kenya on the World Heritage List.1 The Commission noted its concern that the classification
of the reserve as a World Heritage site had occurred in violation of the human rights of the Endorois
community, on whose ancestral land the reserve is located. Apart from the specific case of Lake Bogoria,
the ACHPR also chose to highlight a general lack of integration of, and respect for, the human rights
of indigenous peoples when it comes to the inscription of parts of their ancestral territories on the list of
World Heritage sites. The resolution makes general comments about World Heritage in the context of
indigenous peoples’ human rights, notably “noting with concern that there are numerous World Heritage
sites in Africa that have been inscribed without the free, prior and informed consent of the indigenous
peoples in whose territories they are located and whose management frameworks are not consistent
with the principles of the UN Declaration on the Rights of Indigenous Peoples.” The fact that the African
Commission chose to highlight the issue through the adoption of such a resolution is indicative of a
common lack of respect for the rights of indigenous peoples in the implementation of the World Heritage
Convention. The resolution is also an indication of the general lack of integration and understanding of
the rights of indigenous peoples in the context of World Heritage.
The present chapter aims to highlight some of the main features of human rights law when it comes
to the rights of indigenous peoples in the context of cultural and natural heritage sites, and in particular
World Heritage sites. Cultural heritage forms an important part of the international human rights legal
framework for the protection of indigenous peoples, notably through the recognition that land rights are
an essential element of indigenous peoples’ cultures. The connection between land rights and the
cultural heritage of indigenous peoples is specifically expressed within the UN Declaration on the Rights
of Indigenous Peoples (UNDRIP) and also more generally within the international human rights
instruments relevant to the protection of indigenous peoples. To review the correlation between human
1
Resolution on the Protection of Indigenous Peoples’ Rights in the Context of the World Heritage Convention and the
Designation of Lake Bogoria as a World Heritage Site, adopted at the ACHPR’s 50th Ordinary Session held from 24
October to 5 November 2011. For the full text of the resolution, see Appendix 1 of this volume.
Left: A view of the UN General Assembly Hall at the opening of the twelfth session of the Permanent Forum on Indigenous
Issues, United Nations, New York, 20 May 2013. Photo: UN Photo/Rick Bajornas
56
rights law, indigenous peoples’ rights, and cultural heritage, the first part of the chapter explores how
human rights law has acknowledged and formally recognised the essential role that land and territories
play in indigenous peoples’ cosmology and cultural heritage. It then analyses how, legally, the connection
between cultural heritage and indigenous peoples has been embedded into the emergence of a right to
‘cultural integrity’ for indigenous peoples. Thirdly, the chapter examines how the right of indigenous
peoples to participate and consent before any developments take place on their lands and territories is
strongly affirmed under international human rights law and how such a right is relevant in the context of
World Heritage protection.
Indigenous peoples as custodians of the land
Cultural heritage has not traditionally been an issue examined in detail by international human
rights institutions.2 However, based on the importance of cultural heritage for indigenous peoples,
the former UN Sub-Commission on Prevention of Discrimination and Protection of Minorities of
the Commission on Human Rights gave a mandate to Erica-Irene Daes to conduct a study on
the issue during the 1990s. The study notably highlighted that, for indigenous peoples, cultural
heritage is often expressed via cultural practices related to the particular use of a territory.3 The
study also makes it clear that a strict separation between cultural and natural heritage is neither
possible nor appropriate in the context of indigenous peoples’ heritage. For indigenous peoples,
‘heritage’ is something holistic that includes not only products of human thought and craftsmanship
but also natural features of the landscape and naturally-occurring species of plants and animals
with which a people has long been connected.4 The conduct of the study on the protection of
the heritage of indigenous peoples gave a platform to many indigenous representatives to show
how indigenous communities globally share a similar deep-rooted inter-relationship between their
cultural heritage and their territories. Many indigenous communities throughout the world have
stressed that territories and lands are not only the basis of economic livelihood but are also the
source of spiritual, cultural and social identity, and form an essential part of their cultural heritage.
The study therefore recommended that access and rights to land should be recognised as essential
elements in ensuring that indigenous peoples can enjoy and maintain their cultural heritage.
This connection between cultural heritage and territorial rights for indigenous peoples is reflected
in international legal documents. Over the years of negotiations that finally led to the adoption of the
UNDRIP in 2007, indigenous peoples consistently asserted the need to reflect their specific approach
to cultural rights and cultural heritage with the strong territorial component that this entails. As a result,
Article 25 of the UN Declaration affirms that: “Indigenous peoples have the right to maintain and
strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied
2
One exception relates to protecting cultural heritage in the context of armed conflicts. See Blake 2000; and Francioni
2004.
3“Principles and guidelines for the protection of the heritage of indigenous people”. UN Commission on Human Rights
1995, Annex.
4 UN Commission on Human Rights 1993, paras. 21-24, 31.
INDIGENOUS PEOPLES’ HERITAGE AND HUMAN RIGHTS
57
and used lands, territories, waters and coastal seas and other resources and to uphold their
responsibilities to future generations in this regard.” Similarly, the ILO Convention (No. 169) concerning
Indigenous and Tribal Peoples in Independent Countries affirms in Article 13 that, in applying the
convention, “governments shall respect the special importance for the cultures and spiritual values of
the peoples concerned of their relationship with the lands or territories, or both as applicable, which
they occupy or otherwise use, and in particular the collective aspects of this relationship”.
The connection between indigenous peoples’ cultural rights and land rights has also been
recognised by the Human Rights Committee (HRC) in its interpretation of Article 27 of the International
Covenant on Civil and Political Rights (ICCPR), which concerns the cultural rights of minorities. Article
27 does not refer to land rights or to indigenous peoples but does protect the right of persons belonging
to minorities, “in community with the other members of their group, to enjoy their own culture, to
profess and practise their own religion, or to use their own language”, thereby placing emphasis on
the connection between cultural rights and the rights of minorities. Based on this affirmation, the HRC
has developed specific protection for indigenous peoples’ land rights by acknowledging that, for
indigenous communities, their particular way of life is associated with and largely dependent on the
use of their lands. In an often-quoted General Comment on Article 27 the HRC stated:
“With regard to the exercise of the cultural rights protected under article 27, the Committee
observes that culture manifests itself in many forms, including a particular way of life
associated with the use of land resources, especially in the case of indigenous peoples.
That right may include such traditional activities as fishing or hunting and the right to live in
reserves protected by law.”5
Through this General Comment, the HRC has clearly highlighted that indigenous cultures are often
strongly based on a territorial connection and that such connection is protected under the ICCPR.
The connection between cultural protection and land rights for indigenous peoples has been further
developed and reiterated in numerous concluding observations and individual communications of
the Committee.6 The HRC approach is that, where land is of central significance to the maintenance of a
culture, the right to enjoy one’s culture under Article 27 of the ICCPR requires the recognition of land rights.
A similar approach has been developed by the Committee on Economic, Social and Cultural
Rights, which has also highlighted the fact that cultural rights entail the recognition of land rights for
indigenous peoples. In its General Comment on Article 15 of the International Covenant on
Economic, Social and Cultural Rights (ICESCR), which concerns the right of everyone to take part
in cultural life, the Committee recognised that:
“The strong communal dimension of indigenous peoples’ cultural life is indispensable
to their existence, well-being and full development, and includes the right to the lands,
territories and resources which they have traditionally owned, occupied or otherwise used
5UN Human Rights Committee 1994, para. 7.
6 See, e.g., Scheinin 2000. The HRC has recently also highlighted this connection in relation to the forced eviction of the
Endorois community from their ancestral land around Lake Bogoria. See UN Human Rights Committee 2012, para. 24.
58
or acquired. Indigenous peoples’ cultural values and rights associated with their ancestral
lands and their relationship with nature should be regarded with respect and protected,
in order to prevent the degradation of their particular way of life, including their means of
subsistence, the loss of their natural resources and, ultimately, their cultural identity.”7
Likewise, the Committee on the Elimination of Racial Discrimination (CERD), which monitors
implementation of the International Convention on the Elimination of All Forms of Racial Discrimination,
has also made a direct connection between cultural rights and land rights for indigenous peoples.8
Human rights monitoring bodies have therefore established a strong connection between cultural
rights, which are an important component of the human rights treaties, and indigenous peoples’
cultural attachment to their ancestral territories. There is strong recognition within international
human rights law and jurisprudence that cultural rights for indigenous peoples entail rights to land
and natural resources, and that there is an obligation to protect the cultural heritage of indigenous
peoples through recognition of their rights to own, control and manage their ancestral territories. This
approach acknowledges that indigenous peoples are the custodians of their lands and territories and
that their rights to land therefore need to be protected under the banner of cultural rights.
Rights to cultural integrity and cultural heritage
Recognition of the importance of affirming and protecting the land rights of indigenous peoples
as part of their human rights has become a central component of the human rights jurisprudence.
Increasingly, international and regional human rights bodies have recognised the connection
between land rights and cultural heritage as an essential element of indigenous peoples’ human
rights. This recognition of the links between the land rights and cultural rights of indigenous peoples
has notably been at the core of the jurisprudence of the Inter-American Court of Human Rights
(IACtHR). In the 2001 case of the Awas Tingni community against Nicaragua, the Court stated:
“Indigenous groups, by the fact of their very existence, have the right to live freely in their
own territory; the close ties of indigenous people with the land must be recognized and
understood as the fundamental basis of their cultures, their spiritual life, their integrity, and
their economic survival. For indigenous communities, relations to the land are not merely a
matter of possession and production but a material and spiritual element which they must
fully enjoy, even to preserve their cultural legacy and transmit it to future generations.” 9
It is worth noting that this ruling from the Court highlights the fact that the cultural heritage of
indigenous peoples includes both the tangible and intangible relationship of the indigenous
communities with their ancestral territories.
7UN Committee on Economic, Social and Cultural Rights 2009, para. 36.
8UN Committee on the Elimination of Racial Discrimination 1997.
9 Inter-American Court of Human Rights 2001, para. 149.
59
The Mayagna community of Awas Tingni on the Atlantic coast of Nicaragua. In 2001 the community won an
historic case against the government of Nicaragua in which the Inter-American Court of Human Rights upheld their
collective property rights to their ancestral lands and resources based on a pattern of use and traditional occupation.
Photo: Alianza Mesoamericana de Pueblos y Bosques
Since the Awas Tingni ruling, the IACtHR has developed further jurisprudence on land rights by
integrating them as part of the right to property, the right to life and the right to health.10 Under this
approach, land rights are an essential part of the right of indigenous peoples to cultural integrity.
The right to cultural integrity refers to a bundle of inter-related human rights such as rights to
culture, subsistence, livelihood, and religion, which all support the protection of land rights as an
important aspect of the cultural survival of indigenous peoples.11
References to the right to cultural integrity within the Inter-American Human Rights System
found some echoes in the recent decision from the African Commission on Human and Peoples’
Rights (ACHPR) in the case concerning the Endorois community in Kenya. This case concerned
the forced displacement of the Endorois community from their ancestral land in the heart of the
Great Rift Valley around the area of Lake Bogoria in order to create a wildlife reserve. As noted
earlier, the site was recently included in the list of World Heritage sites. The forced displacement of
the cattle-herding community plunged them into poverty and pushed them to the brink of cultural
extinction. In front of the African Commission, the indigenous community highlighted that access to
their ancestral territory “in addition to securing subsistence and livelihood, is seen as sacred, being
10 See Anaya and Williams 2001; Inter-American Commission on Human Rights 2009.
11 See also Inter-American Commission on Human Rights 2009, paras. 55-56.
60
inextricably linked to the cultural integrity of the community and its traditional way of life.”12 In its
decision, the African Commission agreed that the cultural integrity of the Endorois was imperilled,
acknowledging that the removal of the indigenous community from its ancestral land was a violation
of their rights to freedom of religion (Article 8), culture (Article 17) and access to natural resources
(Article 21) under the African Charter on Human and Peoples’ Rights.
The right of indigenous peoples to cultural integrity is directly relevant to issues relating to
cultural heritage for it directly links to the right to freedom of religion, cultural rights, and the right to
access natural resources. While rights to cultural heritage are not affirmed as such in either the
American Convention on Human Rights or the African Charter, the regional human rights bodies
have acknowledged that protection of the cultural heritage of indigenous peoples is a crucial human
rights issue and part of a larger bundle of rights which includes property rights, cultural rights and
social rights. The approach developed by the regional human rights bodies highlights that, for
indigenous peoples, the concept of cultural heritage includes both intangible and tangible
anchorage to their lands and territories.
Heritage, participation and consent
Participation and consent are key rights within the human rights framework when it comes to the
rights of indigenous peoples. The rights to participation, consultation and consent are strongly
expressed in the UNDRIP, which includes several articles dedicated to the issue of participation.13
Article 19 stipulates that: “States shall consult and cooperate in good faith with the indigenous
peoples concerned through their own representative institutions in order to obtain their free, prior
and informed consent before adopting and implementing legislative or administrative measures
that may affect them.” In the context of land rights, the Declaration further states:
“Indigenous peoples have the right to determine and develop priorities and strategies for the
development or use of their lands or territories and other resources. States shall consult and
cooperate in good faith with the indigenous peoples concerned through their own representative
institutions in order to obtain their free and informed consent prior to the approval of any
project affecting their lands or territories and other resources, particularly in connection with the
development, utilization or exploitation of mineral, water or other resources.” 14
It is evident that this provision also applies to decisions that would classify the lands of indigenous
peoples as cultural or natural heritage sites. The importance of direct participation, consultation
and consent is not limited to the UNDRIP and is part of the jurisprudence regarding the application
of most other human rights treaties. For example, the Committee on Economic, Social and Cultural
12 African Commission on Human and Peoples’ Rights 2010, para. 16.
13 See UNDRIP, Arts. 18, 19, 32, among other articles.
14UNDRIP, Art. 32.
61
Rights has highlighted that “States parties should respect the principle of free, prior and informed
consent of indigenous peoples in all matters covered by their specific rights.”15
The issue of consent and participation in the specific context of World Heritage has been the
focus of both the UN Permanent Forum on Indigenous Issues and the UN Expert Mechanism on
the Rights of Indigenous Peoples (EMRIP), which have both highlighted the fact that indigenous
peoples should be adequately consulted and involved in the management and protection of World
Heritage sites. These two institutions have also emphasised that indigenous peoples’ free, prior
and informed consent should be obtained when their territories are being nominated and inscribed
as World Heritage sites. On this very particular issue, the EMRIP has urged that:
“Robust procedures and mechanisms should be established to ensure indigenous peoples
are adequately consulted and involved in the management and protection of World Heritage
sites, and that their free, prior and informed consent is obtained when their territories are
being nominated and inscribed as World Heritage sites.”16
Free, prior and informed consent implies that States have a duty to obtain indigenous peoples’
consent in relation to decisions that are of fundamental importance to their rights. This includes
decisions to classify their territories under the label of World Heritage sites.
The importance of recognising and upholding the land rights of indigenous peoples in the
context of cultural and natural heritage is also visible in jurisprudence affirming indigenous peoples’
right to free, prior and informed consent in the case of decisions that may affect their traditional
territories. For instance, in 2010, in the previously mentioned Endorois case, the African Commission
on Human and Peoples’ Rights highlighted the fact that “any development or investment projects
that would have a major impact within the Endorois territory, the State has a duty not only to consult
with the community, but also to obtain their free, prior, and informed consent, according to their
customs and traditions”.17 Following the classification of Lake Bogoria as a World Heritage site in
2011, the African Commission expressed deep concern that this had happened “without involving
the Endorois in the decision-making process and without obtaining their free, prior and informed
consent”, underlining that this was a violation of their human rights under the African Charter.18
It is worth noting that support for respecting and implementing the right of indigenous peoples
to free, prior and informed consent in the context of World Heritage sites is also emerging from
other, non-human rights institutions. For example, in 2012, the International Finance Corporation
(IFC) adopted a performance standard regarding indigenous peoples which states:
“Where a project may significantly impact on critical cultural heritage that is essential to
the identity and/or cultural, ceremonial, or spiritual aspects of Indigenous Peoples’ lives,
15UN Committee on Economic, Social and Cultural Rights 2009, para. 37.
16 UN Expert Mechanism on the Rights of Indigenous Peoples 2011, para. 38. Similarly, UN Permanent Forum on
Indigenous Issues 2013, para. 58.
17 African Commission on Human and Peoples’ Rights 2010, para. 291.
18 African Commission on Human and Peoples’ Rights 2011.
62
priority will be given to the avoidance of such impacts. Where significant project impacts
on critical cultural heritage are unavoidable, the client will obtain the FPIC [Free, Prior and
Informed Consent] of the Affected Communities of Indigenous Peoples.” 19
The adoption of such a standard by the IFC, which plays such an important role in supporting
investments globally, is very significant. Not only because the IFC may be behind several projects
regarding the management of World Heritage sites but also because it shows that human rights
obligations are not limited to the public sector. It is also an illustration that the human rights obligations
contained in international human rights documents need to be respected and implemented by
international institutions, even institutions not focusing their work on human rights issues. These
obligations are not restricted to States parties but concern the international community at large. This
is especially true for intergovernmental organization such as UNESCO. Article 41 of the UNDRIP
specifically requires UN agencies and other intergovernmental organizations to “contribute to the
full realization of the provisions of this Declaration” and to establish “ways and means of ensuring
participation of indigenous peoples on issues affecting them”. Likewise, Article 42 stipulates: “the
United Nations, its bodies… and specialized agencies, including at the country level, and States
shall promote respect for and full application of the provisions of this Declaration and follow up the
effectiveness of this Declaration”. From this perspective, there is no doubt that UNESCO, while
being a very specialised agency, needs to integrate and respect the rights proclaimed within the
UNDRIP. This includes respect for and implementation of the right of indigenous peoples to free,
prior and informed consent before any decision affecting their lands is undertaken.
Conclusion
Indigenous peoples the world over have emphasised that they should be regarded as custodians of
the land and that their role as actors in protecting cultural and natural heritage should be recognised
and respected. Land and natural resources are part of their heritage, and human rights law strongly
recognises that connection. The right of indigenous peoples to control, own and manage their
ancestral territories is strongly established under human rights law. This involves recognition of
the importance of land rights not only as a source of livelihood but also as an essential component
of indigenous peoples’ cultural integrity. This includes both the natural and cultural heritage of
indigenous communities. Under international human rights law, the main principles are that
indigenous peoples’ rights to land need to be recognised and protected, and that no decision
affecting their lands or territories must be taken without their free, prior and informed consent.
Despite the fact that these principles are now strongly embedded into human rights law, there is
still a lack of implementation of and respect for these principles by States parties and UNESCO
when it comes to establishing and managing World Heritage sites. The World Heritage Committee
19 IFC Performance Standard 7, Indigenous Peoples, 1 January 2012.
63
needs to review its current procedures and Operational Guidelines to ensure that implementation
of the World Heritage Convention is consistent with the UN Declaration on the Rights of Indigenous
Peoples. For the time being, it is not. Not only it is morally and ethically wrong to exclude indigenous
peoples from decisions that have an impact on their rights and their lives, it is also illegal under
international human rights law.

References
African Commission on Human and Peoples’ Rights. 2010. Communication 276 / 2003 – Centre for Minority Rights
Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya. Decision
of 2 February 2010.
African Commission on Human and Peoples’ Rights. 2011. Resolution on the Protection of Indigenous Peoples’ Rights
in the Context of the World Heritage Convention and the Designation of Lake Bogoria as a World Heritage site. ACHPR
Res. 197, adopted on 5 November 2011.
Anaya, J. and Williams, R. 2001. The Protection of Indigenous Peoples’ Rights over Lands and Natural Resources under
the Inter-American Human Rights System. Harvard Human Rights Journal, Vol. 14, pp. 33-86.
Blake, J. 2000. On defining the cultural heritage. International and Comparative Law Quarterly, Vol. 49, No.1, pp. 61-85.
Francioni, F. 2004. Beyond state sovereignty: the protection of cultural heritage as a shared interest of humanity. Michigan
Journal of International Law, Vol. 25, pp. 1209 ff.
Inter-American Commission on Human Rights. 2009. Indigenous and tribal people’s rights over their ancestral lands and
natural resources: Norms and jurisprudence of the Inter-American human rights system. OEA/Ser.L/V/II., Doc.56/09.
Inter-American Court of Human Rights. 2001. The Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua,
Judgment of August 31, 2001 (Merits, Reparations and Costs). Series C No. 79.
Scheinin, M. 2000. The right to enjoy a distinct culture: indigenous and competing uses of land. T. Orlin et al. (eds.), The
jurisprudence of human rights law: a comparative interpretive approach. Turku/Abo, Abo Akademia University.
UN Commission on Human Rights. 1993. Study on the protection of the cultural and intellectual property of indigenous
peoples, by Erica-Irene Daes, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and
Protection of Minorities. UN Doc. E/CN.4/Sub.2/1993/28.
UN Commission on Human Rights. 1995. Protection of the heritage of indigenous people. Final report of the Special
Rapporteur, Mrs. Erica-Irene Daes. UN Doc. E/CN.4/Sub.2/1995/26.
UN Committee on Economic, Social and Cultural Rights. 2009. General comment No. 21: Right of everyone to take
part in cultural life (art. 15, para. 1 (a), of the International Covenant on Economic, Social and Cultural Rights). UN
Doc. E/C.12/GC/21.
UN Committee on the Elimination of Racial Discrimination. 1997. General Recommendation 23, Rights of indigenous
peoples (Fifty-first session, 1997). UN Doc. A/52/18, Annex V, pp. 122-123.
UN Expert Mechanism on the Rights of Indigenous Peoples. 2011. Expert Mechanism advice No. 2 (2011): Indigenous
peoples and the right to participate in decision-making. UN Doc. A/HCR/EMRIP/2011/2, Annex.
UN Human Rights Committee. 1994. General Comment No. 23: The rights of minorities (Art. 27). UN Doc. CCPR/C/21/
Rev.1/Add.5.
UN Human Rights Committee. 2012. Concluding observations: Kenya. UN Doc. CCPR/C/KEN/CO/3.
UN Permanent Forum on Indigenous Issues. 2013. Follow-up to the recommendations of the Permanent Forum:
Analysis of health, education and culture prepared by the secretariat of the United Nations Permanent Forum on
Indigenous Issues. Doc. E/C.19/2013/19.
64
65
World Heritage, Indigenous Peoples, Communities
and Rights: An IUCN Perspective
Peter Bille Larsen, Gonzalo Oviedo and Tim Badman
Introduction
O
n the 40th anniversary of the World Heritage Convention, achieving a consistent and positive
relationship between indigenous rights and World Heritage in respect of international
standards has emerged as an important issue. There have been a series of examples where
the World Heritage Convention has been positive for indigenous peoples by helping to protect
areas of importance to them. However, questions of indigenous rights being infringed upon,
forced relocation on the establishment of protected areas, lack of consent, little involvement in
management and lack of equitable benefit-sharing are all phenomena that have been reported
at World Heritage sites. It is also clear that many State Parties are taking commendable steps to
nominate sites with the full consent of, and sometimes at the direct request of, the communities
or peoples concerned, to engage in collaborative management, protect rights and secure local
benefits. What determines whether the ultimate outcomes of a given World Heritage process
are positive or negative for affected indigenous peoples and local communities is not only a
matter for an individual State Party but also closely tied to the operation of the World Heritage
Convention and the international support system that enables it to function.
The Advisory Bodies to the World Heritage Convention, the International Union for the
Conservation of Nature (IUCN), the International Council on Monuments and Sites (ICOMOS)
and the International Centre for the Study of the Preservation and Restoration of Cultural
Property (ICCROM), play a central technical role in site evaluations, monitoring and standardsetting. As part of this role, each year IUCN and ICOMOS undertake independent evaluations of
nominated natural, cultural and mixed sites, working in coordination with the Convention’s
Secretariat, UNESCO’s World Heritage Centre.
In this context, in recent years there has been growing awareness that a wide range of
community and rights matters may be positively or negatively affected by a given nomination
process,1 and thus evaluations in turn need to be able to capture and help State Parties and the
World Heritage Committee to address such key issues. Despite the many good examples, there
1
Sinding-Larsen 2012.
Left: View of the Okavango Delta in Botswana, the 1,000th site to be inscribed on UNESCO’s World Heritage List in June
2014. Home to various groups of San, the Delta is one of many natural World Heritage sites inhabited by indigenous
peoples. Natural World Heritage sites are evaluated and monitored by IUCN, the World Heritage Committee’s technical and
scientific Advisory Body on natural heritage. Photo: Philip Milne (CC BY-NC-ND 2.0)
66
is recognition that a number of nomination processes have generated concerns and discontent
due to the impacts they have had on the rights of indigenous peoples and/or local communities.
Customary rights may end up being extinguished or long-standing claims and conflicts may in
fact be resolved through the significant attention sites up for nomination receive from State
authorities, and through the requests that can be made via the World Heritage Convention for
action to be taken to support rights.
Before pursuing a specific discussion of the challenges of and perspectives on strengthening
Advisory Body evaluation processes, this chapter introduces the broader World Heritage context
as well as the IUCN framework on indigenous peoples, communities and rights. It then specifically
presents some of the major challenges and opportunities for strengthening IUCN evaluation
processes and ends with a discussion about some of the ways forward. The chapter is based on
a recent study commissioned by IUCN on how IUCN could strengthen its evaluation approaches
in order to better address issues related to indigenous peoples, communities and rights.2
World Heritage, indigenous peoples, communities and rights
Throughout the World Heritage Convention’s 40-year history, community issues have gradually
taken on more importance and received increasingly direct attention, not least since the adoption
in 2007 of the World Heritage Committee’s fifth Strategic Objective (‘fifth C’): “To enhance the
role of communities in the implementation of the World Heritage Convention”.3 This essentially
built on what was already in the Convention in terms of Parties adopting “a general policy which
aims to give the cultural and natural heritage a function in the life of the community” (Article
5a). In part, this has meant that human presence is no longer considered an anomaly in the
natural World Heritage context but is, to some extent, recognized, evaluated and referred to. The
Convention framework, in keeping with wider conservation policy changes, increasingly seeks
to contribute to sustainable development objectives and diverse management approaches.
For example, in some cases, site renominations have taken place to acknowledge the living
cultural values of indigenous peoples and local communities. The 1992 recognition of cultural
landscapes as a category of World Heritage site led to the addition of cultural criteria to Tongariro
National Park in New Zealand and Uluru - Kata Tjuta National Park in Australia. There are now
over 80 recognized World Heritage cultural landscapes worldwide.4 The term encompasses a
diversity of interactions between humankind and the natural environment, from certain forms
of land-use to specific spiritual relations. Such developments increasingly seek to bridge the
common separation or gap between outstanding natural and cultural values from the perspective
of contemporary communities.
2
3
4
Larsen 2012.
Decisions 31 COM 13A and 13B, adopted at the Committee’s 31st session in Christchurch, New Zealand.
See http://whc.unesco.org/en/culturallandscape/.
WORLD HERITAGE, INDIGENOUS PEOPLES, COMMUNITIES AND RIGHTS: AN IUCN PERSPECTIVE
67
View of Lake Tegano, East Rennell, Solomon Islands. East Rennell is a natural World Heritage site under
customary land ownership and management. Photo: Kevin Saueha, Motumahi lodge, East Rennell
This demonstrates evolving standards for linkages between the ‘cultural’ and the ‘natural’
and a move beyond ‘one-size-fits-all’ models of World Heritage management. East Rennell
Island in the Solomon Islands is an example of a site under customary land ownership and
management that was inscribed on the World Heritage List.5 Many sites today contain a mix of
different land tenure forms, although the general norm is still for a World Natural Heritage site to
be an official, government-declared protected area or for it to encompass several of them.
More broadly speaking, few countries and community organizations are aware of the
potential under the Convention and its Operational Guidelines for State Parties to nominate
World Heritage sites harbouring distinct social, cultural and legal diversity. In practice, many
sites have, for example, undertaken work to reconcile customary ownership and rights with site
management. In 1985, two years prior to World Heritage listing, the traditional owners of Uluru,
5
There was considerable debate in the World Heritage Committee, before East Rennell was listed in 1998, as to
whether customary protection and management was sufficient for inscription under the terms of the Operational
Guidelines. The inscription established an important standard and precedent in relation to the acceptance of customary
law and management as a sufficient basis for the management and long-term protection of natural World Heritage
sites (Badman et al. 2008, p. 24; UNESCO 1999, p. 26). The Operational Guidelines were subsequently amended to
specifically acknowledge that traditional protection and management can be adequate to ensure a site’s safeguarding
(see para. 97 of the Guidelines). Nevertheless, recognition of and working with customary ownership and management
practices arguably remains to be consolidated.
68
the Anangu, were handed back the title deeds of the national park in return for leasing it back to
Parks Australia for 99 years. The Anangu and Parks Australia now jointly manage the site.
However, while considerable progress is being made in many countries, this has still to be
adequately reflected in international processes. It is not surprising, then, that volume 62 of
UNESCO’s World Heritage magazine is dedicated to indigenous peoples’ concerns.6 In practice,
there is often a separation between World Heritage expertise and processes and social
processes to recognize and defend rights. This partly reflects policy gaps in relation to rights in
general and indigenous peoples’ rights in particular.7
In 2003, several of the presentations at the conference ‘Linking Universal and Local Values:
Managing a Sustainable Future for World Heritage’ were already emphasizing the centrality of
rights.8 The key issue is the uneven level of progress in relation to achieving consistent
recognition of rights issues in the implementation of the Convention. UNESCO recently (late
2011) embarked on the development of an indigenous peoples’ policy9 and indigenous issues
were included in the official theme of the 40th anniversary of the World Heritage Convention,
‘World Heritage and Sustainable Development: The Role of Local Communities’.10 Moreover, the
UNESCO World Heritage Centre and the Advisory Bodies are in the process of developing policy
guidelines for the Convention, at the request of the World Heritage Committee, which are
expected to include consideration of communities and indigenous peoples.11
Addressing indigenous peoples, communities and rights concerns requires long-term processes
rather than quick fixes – something evaluations, in turn, need to be able to capture and help State
Parties to address. Whether outcomes are positive or negative in a given nomination, including for
the rights of the people involved, will firstly depend on recognizing such issues, and on giving them
appropriate consideration from the outset of a nomination. The earlier the issues are addressed
and understood, the higher the likelihood that a nomination will contribute to the effective protection
and realization of indigenous peoples’ and local communities’ rights.
Efforts spearheaded by ICOMOS Norway have recently sought to shed light on how a
Convention without specific references to human rights may nonetheless address these
concerns in cultural heritage deliberations.12 This has led to the ICOMOS ‘Our Common Dignity’
agenda developed since November 2011 when the 17th General Assembly of ICOMOS
recognized that an integration of human rights concerns was needed in World Heritage site
designation and management, and requested that the ICOMOS Executive Committee establish
the ‘Our Common Dignity’ initiative as part of the ICOMOS 2012-14 Action Plan.13
6
7
8
9
10
11
12
13
UNESCO 2012b.
Cunningham 2012.
Amsterdam, the Netherlands, 22–24 May 2003. See Merode et al. 2004.
It should be noted, however, that World Heritage affairs, while hosted by UNESCO, are not per se governed by
UNESCO policy.
See World Heritage Committee Decision 35 COM 12D (2011); UNESCO 2011c, para. 5.
See UNESCO 2013 and World Heritage Committee Decision 37 COM 13.
Sinding-Larsen 2012.
Resolution 17GA 2011/30 of the ICOMOS General Assembly (Our Common Dignity: Rights-based Approaches to
Heritage Management).
69
Following an ICOMOS Norway-organized workshop on World Heritage and Human Rights
(Oslo, March 2011), ICOMOS, IUCN and ICCROM, in coordination with UNESCO’s World
Heritage Centre, established a working group seeking, among other things, to develop good
practice in World Heritage site evaluations and monitoring. Although not explicitly involved in the
preparation of nominations given their role in evaluating them, IUCN and ICOMOS can through
the evaluation process help clarify - in a sound and well-documented manner - the extent to
which nomination processes and documents have addressed rights concerns adequately. They
can also make sure that site-specific recommendations reflect and support action to address
indigenous peoples, communities and rights concerns as fully as possible. The working group
has had several discussions to coordinate and advance this work and has developed a roadmap
focusing especially on the opportunities created by the 40th Anniversary of the World Heritage
Convention.
IUCN framework in relation to World Heritage and rights
What constitutes the IUCN framework in relation to World Heritage and rights? There are two
major building blocks to take into consideration from an IUCN perspective. On the one hand,
there is the specific mandate of IUCN in relation to the World Heritage Convention as a technical
Advisory Body. On the other, there is a wider move within IUCN and its membership to analyze,
promote and address community and rights concerns as a scientific, policy and practice field in
the nature conservation context; integral to this effort are IUCN’s policies that seek to ensure that
human rights are respected, promoted and fulfilled for just and equitable conservation (see Box
1, Guiding Principles on Conservation and Human Rights).
Overall, the IUCN evaluation process is defined in relation to the specific mandate
provided under the World Heritage Convention in articles 8, 13 and 14. This positions IUCN
as a formally-recognized technical and scientific Advisory Body on natural heritage and the
general implementation of the programme and project work of the World Heritage Committee.
Article 14 speaks of the World Heritage Committee using the services of its Advisory Bodies
in their respective “areas of competence and capability”. For more than three decades (since
1979), IUCN has supported the World Heritage Committee by providing technical advisory
services on eight general functions. These services are the subject of a combination of
contracted work and a substantial voluntary contribution of IUCN and its networks. Each of
these functions offers opportunities for the mainstreaming of rights, as outlined in the following
matrix.
70
IUCN WH functions
Rights linkages
Evaluation of new nominations
Integrating indigenous peoples, communities and rights issues
into the evaluation of nominations and associated processes
Monitoring the status of existing sites
Monitoring progress on addressing rights concerns (respect,
protection and realization)
Participating in training and technical
workshops
Facilitating training and technical workshops on community and
rights concerns (targeted training for duty-bearers and rightsholders)
Management of information (with the UNEP
World Conservation Monitoring Centre
(UNEP-WCMC))
Facilitating the integration of indigenous peoples, communities
and rights concerns as part of the information system and site
data sheets
Communication and promotion activities
Communicating good practice and state-of-the-art guidance on
indigenous peoples, communities and rights concerns in the WH
context
Advice on international assistance requests
Facilitating inputs on assistance requests related to community
and tenure concerns
General standard-setting on protected
area management
Advising the WH Committee and the UNESCO WH Centre on
possibilities for strengthening standards in relation to indigenous
peoples, communities and rights in the context of natural sites,
mixed sites and cultural landscapes
Contributing to the Global Strategy for
a representative World Heritage List
(e.g. identification of gaps in WH List)
Strengthening the integration of nature-culture inter-linkages,
indigenous heritage priorities and broader issues linked to biocultural diversity in the global strategy
Table 1: IUCN World Heritage functions and opportunities for rights inter-linkages14
IUCN’s work on World Heritage is, however, only a small part of the work of the Union, and questions
of indigenous peoples, local communities and rights are a mainstream focus of IUCN’s work as a
whole. This wider focus and mandate within IUCN and its membership to analyze, promote and
address indigenous peoples, communities and rights in relation to conservation concerns is part of the
technical capabilities IUCN brings to the World Heritage Convention and its Operational Guidelines.
14 Built from Thorsell and Hogan 2009; UNESCO 2011a.
71
Delegates at the 2012 World Conservation Congress in Jeju, Republic of Korea. The Congress is IUCN’s highest
decision-making body and sets the general policy of the organization. Photo: Brähler ICS
This includes the very mission of the IUCN and its overall body of policy in relation to human
rights and conservation and broader policies on social equity. It also includes resolutions and
policies in relation to specific concerns such as indigenous peoples and their collective rights.
IUCN World Conservation Congress Resolution 4.056 from 2008 (Rights-based approaches to
conservation) “promote[s] the analysis of rights-based approaches as a crosscutting principle
within IUCN and its membership”, and calls on the IUCN Council and the Director General to
“undertake further work to support and guide IUCN on the implementation of policies and actions
reflecting a rights-based approach to conservation”. The overall objective for IUCN in promoting
rights-based approaches is to ensure that the protection of rights and biodiversity conservation
become mutually reinforcing.
The 2012 World Conservation Congress adopted an overall IUCN Policy on Conservation and
Human Rights for Sustainable Development,15 including a set of ‘Guiding Principles’ (Box 1). The
scope of the Policy is “human rights, which are the rights that all people are entitled to regardless
of nationality, sex, origin, race, religion, language, political association or other, and which are
protected and recognized in international and national laws, and rights in a broader sense... such
as many of the customary rights of indigenous peoples or local communities (e.g. tenure rights)”.16
IUCN’s policies on rights include the integration of relevant international standards for indigenous
peoples, such as those of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) and
ILO Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries, as
15 Res. 5.099 IUCN Policy on Conservation and Human Rights for Sustainable Development, Annex.
16 Ibid.
72
well as the human rights standards laid out in the Universal Declaration of Human Rights and other
international instruments.17
The same World Conservation Congress also adopted two resolutions on World Heritage, one of
which called on the World Heritage Committee to develop new processes and standards that would
ensure that the Convention appropriately recognizes the rights of indigenous peoples.18 The second
resolution specifically focused on the implementation of UNDRIP in the context of the World Heritage
Convention and called on the Committee and State Parties to ensure that indigenous peoples’ rights and
all human rights are upheld and implemented in the management and protection of existing World
Heritage sites, and to revise the Convention’s Operational Guidelines to ensure that “no World Heritage
sites are established in indigenous peoples’ territories without their free, prior and informed consent”.19
IUCN Guiding Principles on Conservation and Human Rights
• Respect, protect, promote and fulfil all procedural and substantive rights, including
environmental and customary rights, for just and equitable conservation;
• Promote the implementation of the provisions of international conventions and policy
processes which respect human rights in all approaches to conservation [...];
• Consider and realize the rights of people that can be affected in development and
conservation activities such as women, indigenous peoples and other most vulnerable
groups and who could, at the same time, benefit from rights-inclusive and socially
sensitive development measures [...];
• Work towards ensuring the respect for, and seeking further protection and the realization of general livelihood and human well-being considerations always keeping in mind
gender balance as an essential component;
• Focus on the roles and corresponding responsibilities of duty-bearers, rights-holders
and all other actors involved [...];
• Promote transparency and develop tools to address and be accountable for the social
effects of IUCN’s work [...]
• Ensure that IUCN programmes, projects, and activities undertaken, sponsored or supported by the IUCN are assessed using international human rights standards [...];
• In line with UNDRIP standards, require free, prior and informed consent when IUCN
projects, activities, and/or initiatives take place on indigenous peoples’ lands and territories and/or impact [their] natural and cultural resources, sites, assets etc.
Box 1: IUCN Guiding Principles on Conservation and Human Rights 20
17 In addition to World Conservation Congress Resolution 4.056, see in particular Res. 4.048 Indigenous peoples,
protected areas and implementation of the Durban Accord and Res. 4.052 Implementing the United Nations Declaration
on the Rights of Indigenous Peoples, all adopted in 2008.
18 Res. 5.046 Strengthening the World Heritage Convention.
19 Res. 5.047 Implementation of the United Nations Declaration on the Rights of Indigenous Peoples in the context of the
UNESCO World Heritage Convention. See Appendix 2 of this volume.
20 IUCN Policy on Conservation and Human Rights for Sustainable Development. .
73
In addition, with seven other international conservation organizations, IUCN created the
Conservation Initiative on Human Rights (CIHR) in 2008, which adopted the following principles:
CIHR Conservation and Human Rights Framework
CIHR members commit to:
1. Respect human rights: Respect internationally proclaimed human rights and make sure
that we do not contribute to infringements of human rights while pursuing our mission.
2. Promote human rights within conservation programmes: Support and promote
the protection and realization of human rights within the scope of our conservation
programmes.
3. Protect the vulnerable: Make special efforts to avoid harm to those who are vulnerable to infringements of their rights and to support the protection and fulfilment of their
rights within the scope of our conservation programmes.
4. Encourage good governance: Support the improvement of governance systems that
can secure the rights of indigenous peoples and local communities in the context of our
work on conservation and sustainable natural resource use, including elements such
as legal, policy and institutional frameworks, and procedures for equitable participation
and accountability.
Box 2: CIHR Conservation and Human Rights Framework 21
The above policies, translated into IUCN’s Advisory Body mandate, imply:
1. Promoting the use of rights-based approaches in a World Heritage context both by IUCN
itself and its membership (i.e. State Parties nominating World Heritage sites and undertaking
tentative listing);
2. Undertaking further work to support and guide IUCN on rights-based approaches in a
World Heritage context;
3. Collaborating with the World Heritage Committee, the Secretariat and other Advisory
Bodies to apply these policies and principles;
4. Strengthening the evaluation process to enhance State and rights-holder capacity to
identify links between human rights and World Heritage conservation, and to do the same
for other World Heritage processes, such as monitoring.
21 Available in English, French and Spanish through https://community.iucn.org/cihr/
74
It should be underlined that IUCN’s Advisory Body mandate also involves supporting and
complementing work by the other actors within the Convention, notably the central role of the State
Parties themselves, and the work of the other Advisory Bodies and the World Heritage Centre.
IUCN’s responsibility to undertake evaluations of a given World Heritage site nomination is not
primarily focused on identifying rights issues and engaging with affected groups, but rather on
providing technical support to the process, whether through wider guidance (see further discussion
below) or specific evaluations. States may, for example, in specific World Heritage contexts, put
efforts in place to respect, protect and fulfil rights, which IUCN can then address and assess in its
evaluations.
Challenges and opportunities in evaluation processes
It is well-established that the relationship between rights and conservation is complex, and this
is equally true in relation to World Heritage. While there are many good examples, it must be
recognized that a number of nomination processes, and subsequent inscriptions, have generated
problems and discontent due to the impact of inscription on the rights of those affected. At the same
time, it must be noted that some State Parties are spearheading far more proactive engagement
with and use of rights as an integral dimension of the nomination process. Heritage conservation
has the potential to allow for improved protection of rights, including rights to land and resources,
just as it has the potential to clash with or infringe upon them. The following synthesis of issues lists
some of the major concerns identified in discussions with a broad range of actors and the literature
reviewed. The list is far from comprehensive but seeks to illustrate the breadth and diversity of
issues at stake.
Overall guidance on World Heritage and communities and rights
is growing but still insufficient
There has been a marked increase in World Heritage Committee references to and
recommendations on indigenous peoples, communities and rights issues, including requesting
State Parties to address and resolve outstanding matters or commending them for having done so.
In response, State Parties are increasingly presenting detailed information in this respect, just as
wording is increasingly apparent in guidance material. Yet, there are also inconsistencies, in part
stemming from the lack of a comprehensive approach to indigenous peoples, communities and
rights concerns. Human rights standards and technical frameworks have been rapidly developed at
international and national levels, making it challenging to put them into practice in short timeframes.
New standards and practices generate new needs, also in the World Heritage context. While
references to participation and local values have become more common, the approach to
incorporating these issues needs to be far more systematic. This needs to be revisited in the
Operational Guidelines as well as other guidance documents. The current (2011) UNESCO manual
75
for ‘Preparing World Heritage Nominations’,22 for example, includes no specific wording on either
rights or community tenure issues, although these issues are addressed in the subsequent manual
on ‘Managing Natural World Heritage’.23 Core nomination guidance therefore does not yet fully
reflect the importance attached to community concerns and rights by the World Heritage Committee
and the Advisory Bodies in a comprehensive manner. While some countries have advanced such
work, stimulated by domestic policies or international standards, there is a need for upstream
guidance to facilitate State Party engagement on the issues. Although some aspects have been
strengthened, the fact that others are lacking reflects the deficiency of specific consideration of
these issues in the Operational Guidelines.
Working with different stakeholders requires different approaches
‘Stakeholders’ is a term commonly used to encompass all social and institutional groups that have
some kind of interest in a given conservation area or action, such as a World Heritage nomination
or site. In the current processes, the diversity of ‘stakes’ of such groups is rarely recognized and
addressed, and little or no distinction is made between the nature of these different stakes, for
example, of indigenous peoples, local communities, government officials, researchers, commercial
interests and NGOs, all of whom are identified as stakeholders.24 This undifferentiated approach
affects the situation of indigenous peoples and local communities, whose livelihoods and cultures
may be historically connected to a site. In cases where these groups have customary rights to
an area due to their long-standing occupation and use of it, they can be called ‘rights-holders’ to
distinguish them from other stakeholders. The use of the term ‘rights-holders’ for the indigenous
peoples and communities concerned does not negate the existence of other rights vested in other
groups – for example, the people of the country a site belongs to also have the right to have
their national heritage protected and well managed. At a given World Heritage site, however, if
there are indigenous peoples or local communities with customary rights to the lands, territories
and resources, the specificities of engaging with these rights-holders need to be reflected in the
approaches.
Nomination processes that have been inclusive of specific rights-holders illustrate the range of
rights and processes this may imply. Whereas the identification of indigenous peoples and
traditional communities in nomination processes is growing, in some cases it remains contested by
government officials or experts, which could prevent the systematic identification of indigenous
peoples and community rights concerns in IUCN’s evaluation processes. While the topic receives
fairly comprehensive treatment in evaluations in some countries with relatively strong legal
recognition of indigenous rights and long-standing indigenous engagement with heritage processes,
evaluations are much weaker in countries lacking such law and practice. Paradoxically, the latter
22 UNESCO 2011b.
23 UNESCO 2012a.
24 See e.g. UNESCO 2011b.
76
are often the countries where reviewing how rights have been addressed in the nomination is most
needed. In addition to indigenous and community rights-holders, most sites will involve a complex
of other types of rights-holders potentially affected by World Heritage nomination. These may
include children, migrants, settlers or women, for example. Again, nominations differ markedly in
terms of the extent to which such different right-holders are adequately identified in the evaluation
process.
Rights concerns not identified in evaluation processes
Cases of indigenous peoples’ and local communities’ rights not being identified during the
evaluation process undertaken by IUCN have appeared throughout the years. One particular
case, that of the Lake Bogoria National Reserve (part of the Kenya Lake System in the Great Rift
Valley, inscribed as a World Heritage site in 2011), has highlighted some of the disconnections in
the system that need to be addressed. The Lake Bogoria area was declared a Game Reserve
in 1978, at which moment, following national legislation, the resident Endorois community was
forcibly removed from the area, according to a legal complaint filed by the community in 2003 with
the African Commission on Human and Peoples’ Rights (ACHPR).25 The ACHPR ruled in favour of
the plaintiffs, finding that as a result of their forced eviction from their ancestral lands the Endorois
had suffered violations of several of their human rights under the African Charter on Human and
Peoples’ Rights. The grievances of the community were not mentioned in the nomination, and
although the Endorois representatives raised these complaints in letters to UNESCO, these were
not conveyed to IUCN during the evaluation process. The complaints were also not mentioned
during the stakeholder consultations and public hearings that took place during the field evaluation
(although other concerns were raised and addressed). Complaints from the Endorois Welfare
Council and organizations who supported them even reached international venues such as the UN
Permanent Forum on Indigenous Issues, yet they were not detected during the IUCN evaluation
process. A petition specifically prepared to articulate rights concerns in relation to nominations to
the 35th Session of the World Heritage Committee raised concerns about ineffective consultation
and lack of consent but did not mention the judgement of the ACHPR, despite its evident relevance
to rights concerns.26 Furthermore, the State Party presented documented evidence of an extensive
10-year consultation process.
Accessing appropriate and sufficient information on rights issues and making consultations
around the nomination process and documentation as inclusive as possible is challenging, as this
example illustrates. It has been suggested that evaluation arrangements could, in the most extreme
cases, be easily ‘stage managed’ by State Parties interested in avoiding problematic areas,
including possible human rights violations; this might manifest itself in community meetings and
25 Communication 276 / 2003 – Centre for Minority Rights Development (Kenya) and Minority Rights Group International
on behalf of Endorois Welfare Council v Kenya.
26 Endorois Welfare Council et al. 2011.
77
consultations organized and selected by State officials etc. Furthermore, it is also a concern that
key rights-holders may be unaware of the nomination process, suggesting the need for more
proactive outreach to indigenous peoples’ and local communities’ representatives if genuine
participation is sought. This is particularly clear at natural sites often involving large distances, poor
infrastructure and weak communication means.
Despite the difficulties and complexity, there is a clear need for evaluation processes to include
greater and more systematic consultation of indigenous peoples, and to include specific assessment
of the degree to which consultation has been undertaken by State Parties. Structured relationships
with key organizations with expertise in this area that can assist Advisory Body evaluations also
need to be formed and/or strengthened. The United Nations Permanent Forum on Indigenous
Issues, as the recognized UN body considering indigenous peoples’ issues in general, may provide
particularly appropriate opportunities for collaborative work with the Advisory Bodies, and could
also offer advice to UNESCO. UN Special Rapporteurs with theme- or country-specific mandates
may also be important interlocutors.
Recognizing complexity and working systematically
The complexity of dealing with indigenous peoples, communities and rights issues in the World
Heritage context is an important reason for strengthening the Advisory Bodies’ engagement with
these issues in their evaluations. Firstly, some sites harbour particularly complex make-ups of
different rights- and stakeholders, whose interests and claims may be overlapping and, in some
cases, conflicting. Understanding such complexity requires prolonged engagement. Secondly,
community engagement is rarely a simple ‘either or’ scenario but involves a whole range of issues
and challenges, including in relation to opportunities for participation, and questions regarding who
speaks for or represents a particular community or people. In some cases, there is a perception
that field missions, due to their short durations, easily (and perhaps inevitably) risk missing the
complexity of a given topic, especially if evaluators lack knowledge of the region and issues. For
State Parties investing time and resources in addressing these issues, it is important that the
Advisory Bodies’ evaluations pay due credit to both the complexity of the issue and the wide range
of efforts being made. A more systematic approach to the range of issues around indigenous
peoples, local communities and rights is critical in order both to recognize what is being done and,
equally, to allow evaluations to clarify complexity and identify workable follow-up solutions where
problems are identified.
Rights may be misunderstood as problematic for World Heritage
recognition and site management
In a number of countries, World Heritage processes have led to concerns regarding possible
expropriation of lands from communities or indigenous peoples and relocation of settlements.
78
Any such actions may reflect a misconception that World Heritage nomination requires
community presence and rights to be extinguished for site recognition. This may, in part, also
result from the fact that State-governed IUCN Category 2 protected areas (‘National Parks’)
are often presented as a preferred management model for World Heritage sites, without
fully exploring alternatives, and such a category in the national legislation of many countries
excludes resident communities.
Depending on the site and the level of civil society involvement, such neglect of rights
would, in some cases, only be raised and addressed in the nomination and evaluation process.
In recent years, IUCN has been actively promoting new policies and practices in the protected
area community not only in terms of addressing social impacts but also in terms of avoiding
blueprint approaches based on Western notions of nature that neglect long-standing human
ecological relationships and other management possibilities. This confirms the importance of
further upstream guidance in this respect, while reinforcing the need for the Advisory Bodies
to identify and evaluate how rights are being addressed in the nomination process and its
preceding steps. Fundamentally important in this regard but insufficiently known is the fact
that the World Heritage Convention has long regarded traditional management systems as
fully appropriate for providing the protection and management expected of listed World
Heritage sites.27 A growing number of World Heritage sites have been listed on this basis,
including at the specific request of indigenous peoples.
Legacy issues: ‘Rights were already infringed upon before the nomination
process, so recognition does not change anything’
An important point is that World Heritage nomination or inscription of a natural area does not
anticipate a direct change in tenure and protection arrangements existing therein. Inscription
of a site merely recognizes its Outstanding Universal Values and its form of land-use, including
the protection and management of standards and practices that have been put in place for its
conservation. Typically, for example, a national park would have been declared well before the
nomination, following national legislation and policies. The relocation of people or other actions
negative for indigenous peoples and/or local communities in the area may thus have happened
years before the initiation of a World Heritage nomination process, that is, at the time when the
national park was established.
As an example, the Wildlife Sanctuaries of Thung Yai Naresuan and Huai Kha Khaeng in
Thailand became a World Heritage site in 1991; Thung Yai Naresuan had been declared a Wildlife
Sanctuary 17 years earlier, in 1974. Ethnic Pwo Karen communities had been living in Thung Yai
Naresuan for possibly 200 years before the establishment of the Sanctuary yet, since the creation
of the Sanctuary, they had been subject to a number of measures aimed at their relocation and
27 See para. 97 of the Operational Guidelines.
79
restriction of their subsistence practices.28 The challenges that the Pwo Karen communities have
faced are not therefore primarily the result of the inscription of the area as a World Heritage site in
1991 but of the creation of the Wildlife Sanctuary in 1974.
The question that follows from this and similar examples is whether such antecedents should
be used as an argument against the World Heritage nomination and inscription of the sites, or
whether the nomination process itself could be an opportunity to redress wrongdoings that
happened decades before and, if so, what it would require to change the tenure and rights set-up,
including through reforming national laws.
The debate is important. It is the view of the authors that more emphasis is needed on the
transformative potential of World Heritage nominations in situations with legacies of rights issues.
Recognition of pre-existing rights problems in an evaluation process as such may not in principle
change a given situation but it can influence change through practical recommendations from the
evaluations, for example the inclusion or exclusion of certain areas, the adoption of specific
management practices or recommendations related to buffer zones.
An important policy principle in this context for IUCN is that relocation or other actions negatively
affecting communities should never be directly caused, accelerated or intensified as a result of
World Heritage nomination processes. Furthermore, measures proposed regarding communities
linked to a site should be based on agreements with them and should result in demonstrable
improvements in the lives and capacities of the communities for engaging in World Heritage
management.
Unless community land and tenure is adequately addressed in the preparation process,
indigenous peoples and local communities may suffer from increased land and housing prices and
other problems that the World Heritage inscription can sometimes trigger. Conversely, World
Heritage recognition may be a leverage point to revoke or repair prior infringements, restore
relationships with land and resources, and pursue socially beneficial management and economic
relations. What is clear is that unless infringements and concerns regarding rights that took place
prior to World Heritage processes are addressed in explicit terms during the evaluation of
nominations, the real potential to resolve and repair the rights deficit will be lost, and there could be
the risk that rights concerns are further deepened.
Lack of clear performance criteria for indigenous peoples, communities
and rights issues
It is clear that overall protected area standards are being consolidated in relation to concerns about
indigenous peoples, communities and rights through processes such as the CBD Programme of
Work on Protected Areas;29 however, similar standards are less clear in relation to World Heritage
28 Buergin 2003; Delang and Wong 2006.
29 Adopted at the seventh meeting of the Conference of Parties to the Convention on Biological Diversity (Kuala Lumpur,
2004) and reaffirmed with additional elements in 2010 (Nagoya, Japan). Available at https://www.cbd.int/protected/
pow.
80
nominations. The uneven treatment of issues related to indigenous peoples and local community
concerns across different evaluations raises the need for a more structured framework or checklist
allowing for evaluators to assess performance on key community and rights topics.
Such a checklist would involve developing specific questions and, when applicable, performance
criteria, along with key concerns about indigenous peoples, local communities and rights. The sources
of such performance criteria would include existing and future World Heritage Committee decisions,
Operational Guidelines and policies, as well as applicable international standards such as the
UNDRIP. For IUCN, it is specifically important to better reflect its own standards (and those
international standards that IUCN regards as the most significant) in relation to indigenous peoples,
local communities and rights as part of the evaluation process. The underlying issue is the need for
a consolidated set of policy principles and performance indicators on indigenous peoples, local
communities and rights to guide World Heritage Committee decisions on specific site nominations.
Until these are agreed, one option for the Advisory Bodies such as IUCN is to make more use of
their own standards on indigenous peoples, local communities and rights and share relevant good
practice with State Parties when undertaking evaluations. In grey-zone areas where standards are
still being developed, IUCN could make use of its own standards as a reference agreed upon by its
membership. This may form part of technical inputs to help strengthen the World Heritage
Convention’s own policy framework. It is also clear that this effort would benefit substantially from
upstream work to ensure that guidance to State Parties is provided, and also for nomination formats
to be strengthened in terms of more explicit policy standards and dedicated space to address
community and rights issues.
In response, IUCN has initiated a learning-by-doing process to introduce consideration of rights
explicitly into its World Heritage evaluation processes. This included, in 2012-13, the addition of a
dedicated space in field evaluation reports for community and rights concerns, a new protocol to
ensure field evaluators are prompted to consider rights issues before evaluation missions,
enhanced consultation procedures with both external networks and IUCN’s own expert groups on
rights, the introduction of the heading of ‘Community’ with relevant content in IUCN reports to the
World Heritage Committee, and explicit attention to these issues in the agenda of the IUCN World
Heritage Panel. Complementing these efforts is a growing dialogue and partnership with ICOMOS
on these issues, on the relationships between the ‘natural heritage’ and ‘cultural heritage’ mandates
of both organizations, and on the need to better coordinate evaluation activities.
Unresolved rights issues and World Heritage as a turning point for change
Deep-running structural conflicts in any given place are unlikely to be resolved unless problems are
addressed in a comprehensive manner. This is true in the case of national protected areas laws and
policies, as well as institutional setups and practices. World Heritage nomination typically involves
significant public and governmental attention to a given area and its on-going conflicts, problems
and unresolved issues. From this perspective, nominations can offer important opportunities for
catalyzing attention and resources to resolve a given conflict, particularly if evaluations identify
81
the concerns at stake. The most obvious cases are sites which specifically make reference to
indigenous peoples’ and local communities’ rights in the nomination itself.
World Heritage processes can have problem-solving effects on seemingly intractable issues. In
one area, concerns raised anonymously with the field evaluator about a waste landfill being planned
between two conservation areas making up the nominated site created an opportunity for dialogue
between the technical mission and the State Party, as a result of which a solution was found to the
problem – while debates had run on for years unproductively. Similar problem-solving effects could
likely appear in relation to indigenous peoples, local communities and rights issues; for this, more
explicit questions and formalized and structured attention to community and rights issues by the
evaluators would significantly heighten opportunities for undertaking dialogue with State Parties
and resolving many of the matters currently either neglected or only addressed when conflict
erupts.
Ways forward
Concerns regarding rights clearly need a new and more active approach in the World Heritage
Convention, recognizing the balance of issues at stake, including resolving problems, realizing
opportunities and celebrating successes. There is a need to ensure that the minimum standards
applied to World Heritage nominations correspond to international norms, as well as to develop
approaches that will enable the Convention to set standards of best practice in line with its flagship
role. The site-specific focus of the World Heritage Convention also ensures that results in the real
world can be seen and evaluated so that a connection from policy to practice can be achieved in
a tangible way.
As a first step in a new phase of active and systematic consideration of rights in the World
Heritage evaluation process, IUCN has embarked on a learning-by-doing exercise in the 2012/
2013 evaluation cycle, as mentioned above. It is expected that this experience will be integrated
into IUCN processes, with a consolidated report to the 2016 World Conservation Congress, as well
as to the World Heritage Committee. Consultations with other Advisory Bodies have moreover
cemented community and rights concerns as a collective challenge also in need of collective
solutions. This includes collaborating with ICOMOS both in terms of its specific mandate in relation
to cultural sites and in terms of joint responsibilities in relation to mixed sites and collaboration
taking place in relation to cultural landscapes.
Yet it is also clear that reforming World Heritage processes so that they adequately build on a
rights-based approach will take much more than strengthened evaluation practices. Across the
whole World Heritage system and cycles, from guidance to nomination processes to monitoring of
sites, there are good opportunities and entry points for addressing rights issues and securing
positive results. A much deeper and more inclusive debate is required to resolve the disconnections
blocking positive change, to communicate and learn from both positive and negative experiences,
and to agree on the changes that could be made to the expectations set for State Parties and their
listed World Heritage sites via the Operational Guidelines and procedures of the World Heritage
82
Convention. Such debate is needed to make World Heritage sites not only effective conservation
areas but also places for just, equitable and sustainable development for communities and
peoples.

References
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Standards for Natural World Heritage. Gland, IUCN.
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Sanctuary in the context of Thailand’s globalization and modernization. Geoforum, Vol. 34, pp. 375–393.
Cunningham, M. 2012. Interview with Myrna Cunningham, Chair of the United Nations Permanent Forum on Indigenous
Issues (UNPFII). World Heritage, Vol. 62, February 2012, pp. 52-55.
Delang, C. O. and Wong, T. 2006. The Livelihood-based Forest Classification System of the Pwo Karen in Western
Thailand. Mountain Research and Development, Vol. 26, No. 2, May 2006, pp. 138–145.
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Future for World Heritage. World Heritage Papers, Vol. 13. Paris, UNESCO.
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IUCN Evaluation Missions and IUCN Technical Evaluation Reports. Gland, IUCN.
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November 2011. Paris, World Heritage Centre.
UNESCO. 2011b. Preparing World Heritage Nominations (Second edition, 2011). World Heritage Resource Manual. Paris,
UNESCO/ICCROM/ICOMOS/IUCN.
UNESCO. 2011c. Progress report on the preparation of the 40th Anniversary of the Convention. Doc. WHC-10/35.
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UNESCO. 2012a. Managing Natural World Heritage. World Heritage Resource Manual. Paris, UNESCO/ICCROM/
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COM/13.
PART II
CASE STUDIES
84
85
The Laponian World Heritage Area:
Conflict and Collaboration in Swedish Sápmi
Carina Green1
Introduction
T
he Laponian World Heritage Area is situated just above the Arctic Circle in the north of
Sweden, and stretches across the mountain range towards the Norwegian border. Established
in 1996, it consists of some of the oldest and most well-known national parks and nature reserves
in Sweden, such as Stuor Muorkke, Sarek and Sjávnja (see Map 1).2
This article will discuss some of the events that occurred locally when the area gained its World
Heritage status.3 In 1996, a finished and detailed management plan was not a prerequisite when
1
2
3
The author would like to thank Lars-Anders Baer and Mattias Åhrén for valuable comments on a previous draft of this
article.
Named here in Sami, these areas are called Stora Sjöfallet, Sarek and Sjaunja in Swedish.
The empirical material for this article rests on the results of research in the Laponian Area specifically and on the World
Heritage phenomenon in more general terms. The research was carried out over different periods between 1999 and
2009, and was sponsored predominantly by consecutive grants from the Swedish Research Council and the Swedish
National Heritage Board. For a more detailed account, see my Doctoral Thesis (Green 2009).
Left: Gathering of a reindeer herd by members of the Sirges sameby in November 2012 near Lake Kutjaure on the border
of the Laponian Area (Padjelanta National Park). At the beginning of winter, the reindeer herds are gathered from their
grazing areas in the Laponian Area and moved down to their winter pastures in the lowland forests to the east of Laponia .
Photo: Carl-Johan Utsi
86
nominating sites. As the area had been under national environmental protection for such a long time
(the earliest declaration of protected status was 1909), existing national regulations for the area
were considered sufficient for the nomination, and were supposed to be developed further once the
site was inscribed on the World Heritage List. However, it proved difficult to achieve a management
plan that all actors involved could agree upon, and there was a clear polarization between the local
authorities and the indigenous Sami community involved. The Laponian case shows that local and
indigenous people’s involvement in environmental protection schemes is, above all, a political issue
that ultimately leads to reassessed and restructured relations with the state authorities.
The Sami in Sweden – a short background
The Sami people are indigenous to northern Norway, Sweden, Finland and the Kola Peninsula
of Russia. In total, the population is estimated at approximately 70 000 individuals4 and, out of
these, around 20 000 live in Sweden. The Laponian Area has traditionally been inhabited by Sami
people and lies in the heart of the Sami core area, Sápmi (Samiland). Until today the area is of vital
importance for many Sami reindeer herding families. Although famous throughout the world for
being a pastoral, reindeer herding people, most Sami today are not engaged in reindeer herding.
In Sweden, approximately 10-15% of the total Sami population of 20 000 are active in herding.
Nevertheless, there are strong Sami cultural and symbolic values attached to reindeer and the
herding lifestyle and, as such, reindeer herding remains an important ethnic marker for the Sami
community as a whole.5
The reindeer herders are organized into samebys. A sameby is an economic association of a
group of reindeer herders who collaboratively use a specific traditionally occupied geographical
area for herding.6 There are 51 samebys in Sweden today. Only reindeer herders are members
of samebys and, under Swedish law, only sameby members can legally exercise the collective
inherent resource use rights of the Sami people, including special rights to hunt and fish. In
practice, this means that only a small percentage of the total Sami population today are able to
enjoy those rights. This ‘split’ between reindeer herding Sami and non-herding Sami in terms of
their ability to legally exercise their collective rights goes back to reindeer herding laws from the
beginning of the 20th century, and was generated by both issues of resource conflict and of Social
Darwinist influences on the government’s Sami policies at the time.7
4
5
6
7
Sami Information Centre 2006. This number is taken from the official information site on the Sami people, under
the control of the Sami Parliament in Sweden. However, a proper census of the population has never been taken.
Moreover, it would be difficult to come up with an exact estimation since the definition of who is and who is not Sami is
often arbitrary and, to many people of ‘mixed’ origin, the Sami identity will be of significance only on specific occasions
or at specific periods in life.
In Sweden, reindeer herding is an exclusive right of the Sami population, based on customary use since time
immemorial.
For details, see Beach 1981, pp. 360-393.
For more details, see Beach 1981; Lundmark 1998, 2002; Mörkenstam 1999, 2002.
THE LAPONIAN WORLD HERITAGE AREA: CONFLICT AND COLLABORATION IN SWEDISH SÁPMI
87
Map 1: National Parks and Nature Reserves in the Laponian World Heritage Area
Nine samebys have grazing land for their reindeer inside the World Heritage area.8 No one
lives there permanently but, each summer, the reindeer herders in the area move up with their
families from the populated areas to the mountains to be close to the reindeer and their summer
pastures.
Compared to indigenous peoples in other countries, the Sami in Sweden are well-integrated
into the welfare system, and there are in general terms no major socio-economic differences
between the Sami and other citizens. The colonization process was slow and rested mostly on
administrative and religious assimilation into the majority society.9 The majority population has had
a long and mostly peaceful interaction with the Sami community, and non-Sami farmers settled
early in large parts of Sápmi. However, injustices and atrocities have historically occurred and
should not be downplayed. The colonial rule, mentality and attitude of the state authorities, both
historically and today, is an issue that many Sami are aware of and have to deal with. Many
Sami (and non-Sami) would argue that there is still a prevailing structural colonization that hinders
Sami individuals as well as Sami ideas and values in playing a full role in the development of
8
9
The nine samebys with grazing areas inside the Laponian Area are Baste Čearru (Mellanbyn), Unna Čearuš
(Sörkaitum), Sirges (Sirkas), Jåhkågasska, Tuorpon, Luokta Mávas, Gällivare, Sierri and Udtja.
Rydving 1993; Lehtola 2004.
88
society, both locally and nationally. Frequently, the relationship between state officials and the Sami
(especially reindeer herding Sami) is somewhat strained. In most countries with an indigenous
population, the relations between government agencies tasked with environmental protection and
the indigenous population is a specific and often difficult one. Even though colonization to a large
extent involves non-material perspectives (religion, values, language and so on), confiscation of
inhabited and traditionally used territories nevertheless stands out as the most tangible proof of
colonization. It is here that the basic resources, including both intrinsic and material values, rest.
Since the land is still often under the claim of national authorities, these agencies and their staff
are frequently seen as the concrete testimony of both historical and current colonial rule. In the
process of establishing a management plan for Laponia, the Sami representatives would all agree
that this colonial structure, sometimes so difficult to discern, became visible and came to affect the
negotiations among the local actors.10
The Sami community in Sweden today is active in international indigenous affairs and there is a
Sami Parliament in Sweden, established in 1993. In some regions in Sweden, children can attend
Sami schools and Sami have the right to use their own language when interacting with the authorities.
Culturally, academically and politically the Sami community has seen a rapid and positive development
in the last decades. However, when it comes to concrete rights to lands and waters, and increased
political autonomy more generally, there have been fewer signs of progress, and knowledge of Sami
history, culture and current situation among the majority population remains weak.
Background to the World Heritage nomination
Laponia is a ‘mixed’ World Heritage site. Its ‘outstanding universal value’, as defined by the World
Heritage Committee, is based both on natural criteria and on the Sami culture (both historical and
current) in the area. The official inscription in 1996 reads as follows:
“The Committee decided to inscribe the nominated property on the basis of natural criteria
(i), (ii) and (iii) and cultural criteria (iii) and (v). The Committee considered that the site is of
outstanding universal value as it contains examples of ongoing geological, biological and
ecological processes, a great variety of natural phenomena of exceptional beauty and
significant biological diversity including a population of brown bear and alpine flora. It was
noted that the site meets all conditions of integrity. The site has been occupied continuously
by the Sami people since prehistoric times, is of the last and unquestionably largest and
best preserved examples of an area of transhumance, involving summer grazing by large
reindeer herds, a practice that was widespread at one time and which dates back to an
early stage in human economic and social development.” 11
10 Dahlström 2003, Green 2009.
11 World Heritage Committee 1996.
89
View of the Rapa Valley in the Laponian Area (Sarek National Park). Photo: distantranges (CC BY-NC 2.0)
The Committee also “underlined the importance of the interaction between people and the natural
environment”.12
The story of the World Heritage nomination of Laponia can be said to have begun as early as the
1980s when the Swedish government submitted an application to the World Heritage Committee
nominating the Sjávnja nature reserve (today part of the Laponian Area) on the basis of natural
criteria only. This first initiative was not accepted by the World Heritage Committee. The Committee,
based on the reports from its advisory body, IUCN, thought the area lacking in exceptionality and
informally advised the Swedish authorities to withdraw the application with a view to nominating an
extended area in the future.13 Voices were now also raised, both from government departments and
from the Sami Parliament, suggesting that the new nomination should also include Sami culture in
the area. After all, reindeer herding had a significant impact in shaping the biological characteristics
of the landscape, and the Sami cultural and spiritual connections to the land were and still are
strong. This was an idea that would indeed increase the possibility of a successful outcome for the
nomination.
12 Ibid.
13 See IUCN 1990; UNESCO 1990; and Dahlström 2003, p. 242.
90
The Sami had not been very involved in the process for the ‘old’ nature-based Sjávnja
nomination, apart from a few discussions and talks with authority officials on the matter. With
the mixed-site nomination, however, their participation in the process became more direct. The
first thing that happened was that the cultural part of the application had to be inserted into
the document, containing the already completed description of the site’s natural values.14 This
assignment was given to the head of the Ájtte Swedish Mountain and Sami Museum. However, it
was expected that the cultural part of the application should be completed in only three months,
compared to the years and years of work that had been put into the natural part of the application.
The County Administration of Norrbotten had previously been criticized by other actors (Sami and
non-Sami) for placing too much focus on the biology and geology of the area, without properly
emphasizing the Sami cultural heritage. The short time given to the head of the museum confirmed
these opinions and this was something that many of the members of the local samebys talked
about at the time. Less time and fewer resources were spent on the cultural parts of the application
and on the parts acknowledging the Sami interest in the area, and this was something that would
continue to echo throughout the negotiations over how to manage the area.15
From collaboration to conflict
As stated earlier, the Laponian Area consists of previously established national parks and nature
reserves. This means that a large part of what is today called Laponia had been the object of
nature conservation legislation for a long time, the first national park having been established as
early as 1909 (Sarek). Laponia consists almost entirely of Crown Land, according to the official
interpretation of the law. However, this assumed ownership has never been officially registered
and has been contested and debated.16 The authority responsible for nature conservation
management in Sweden is the County Administrative Board (Länsstyrelsen), and its regional
offices. Consequently, the County Administration of Norrbotten (henceforward the County
Administration), the northernmost regional office of the County Administration Board, was from the
start responsible for the maintenance and management of the World Heritage area. The County
Administration, together with the Swedish Environmental Protection Agency (SEPA), had been
very active in forming the application for World Heritage status ever since the first attempts in the
1980s with the Sjávnja application.
As mentioned, nine samebys have some or most of their reindeer herding land inside the World
Heritage area. Of these nine samebys, two (Sierri and Udtja) only use these lands occasionally
14 In the original draft of the nomination document, the area was referred to as “The Lapponian Wilderness Area” and
portrayed as more or less untouched by humans (with the exception of the traditional influence of the Sami and their
reindeer herding). The Sami Parliament objected to this depiction, pointing out that the area was a Sami cultural
landscape that had been inhabited and influenced from time immemorial (Dahlström 2003, pp. 246-253; Green 2009,
p. 103).
15 Dahlström 2003, pp. 242, 255; Green 2009, p. 106.
16 Cramér 1966-2009; Korpijaako-Labba 1994; Allard 2006.
91
and chose to remain outside the negotiations. However the seven remaining samebys (Báste,
Unna Čearus, Sirkas, Jåkkåkaska, Tourpon, Luokta-Mavas, and Gällivare skogssameby) were
from the start active in trying to influence the process. They had both concerns and expectations
for the new World Heritage site. The local reindeer herders were especially worried that the World
Heritage designation would lead to restrictions on their immemorial rights and that they would not
be allowed to use the area for fishing and hunting, or collect wood for fire or handicraft materials
to the same extent as before. Another concern was how the nomination of Laponia would affect
the predator policy. Large predators are a constant threat to the reindeer and most herders find
the regulations regarding the possibilities of protecting their herds from these animals too strict.
A discussion regarding what was considered a rather rigid definition of ‘culture’ was also taking
place at this point in time. Some local sameby members expressed a worry that there would
be an increased demand on them to behave ‘more traditionally’ in order to fit the stereotypical
image of the Sami and please tourists. Another fear from some sameby members was that
World Heritage status would increase the number of tourists and that the samebys would not
have enough influence over where and when tourists would reside in the area, and therefore that
tourism would disturb the reindeer. Nevertheless, there were also many hopes and expectations
from the samebys regarding the new World Heritage status. Tourism was also talked about in
positive terms, and many sameby members saw a possibility of engaging in the tourism industry
or even establishing their own tourism enterprises. Another positive opinion raised by many
was that the very fact that the Sami reindeer herding culture was now part of a World Heritage
site was something to be proud of. Many hoped that this, in some way, would mean additional
international support for the Sami ethno-political struggle. Above all, many sameby members
expressed how important it was that they would be able to have a say in the future of the World
Heritage area and in the management of it. Broad underlying issues of accessibility to land,
responsibility, influence and control were at stake for the local samebys at the beginning of what
would be a long and often painstaking process.
Immediately after the approval of the Laponian nomination by the World Heritage Committee
in December 1996, a Laponian Council was formed consisting of representatives from the two
municipalities17 of Jokkmokk and Gällivare, the County Administration, the local samebys, the Ájtte
museum and tourist departments of the municipalities. In spite of the intention to cooperate and
jointly form a management module for the World Heritage site, it soon became obvious that the
different actors had very different views on how to go about the process and what to prioritize.
The main difference of opinion among the various representatives on the Laponian Council
was regarding how much emphasis should be placed on Sami cultural heritage in relation to
natural heritage. The representatives from the samebys articulated their status as a separate and
clearly defined actor in relation to the other groupings, and in discussions raised the importance
17 In Sweden, municipalities (kommuner) are administrative units, as well as geographically demarcated areas that are
governed by a Municipal County (kommunfullmäktige), elected by local voters. The two closest municipalities to the
Laponian Area, Jokkmokk and Gällivare, were, together with the County Administration, the local authorities that from
the beginning had a strong interest in the development of the new World Heritage site.
92
of reindeer herding interests and Sami control in the future management of the World Heritage
site as vital for the development of the area. At this point in time, it was not self-evident that the
samebys would be counted as an actor on their own behalf, equal in status to the municipalities
and the County Administration. Voices were even raised that questioned the organization of the
samebys as a stakeholder group in their own right. After all, it was argued, they could and should
be represented by the municipalities in the negotiation of the future of Laponia just as any other
citizen, for they had elected the current politicians in the latest municipal elections.18 Even though
far from everybody agreed with this standpoint, it is an indication of the difficulties that the sameby
members faced in the very beginning, after Laponia had been inscribed on the World Heritage List,
to position themselves as a separate and equal partner in the decision making regarding the area.
This fact was prominent throughout the years of negotiation that followed, and very much shaped
the relations among the local actors, along with the characteristics of the negotiation process.
Years of disagreement
After only a few meetings, the Laponian Council was disbanded. From this point on, it was primarily
the three main local actors (the samebys, the municipalities and the County Administration) that
continued to be involved in working out a future management plan for Laponia albeit more often
separately than in collaboration with each other. The representatives from the nine samebys were
now determined to have a real influence over the development of the World Heritage site. They
realized that strong Sami involvement in the management was of importance not only locally but
could have effects for the Sami community as a whole. It was seen as a potential stepping stone
towards increased self-governance in a broader sense. The representatives from the samebys
launched one clear demand: to have the majority of seats on a future management board.19 This
was, however, strongly rejected by the other actors.
It was decided that each of the three local actors should produce a proposal for a management plan
in which they articulated their visions for the World Heritage site and sketched what a management
organization could look like in practice. The samebys involved had now employed a coordinator to help
them coordinate the work regarding Laponia, and they also employed an editor, skilled in international
conservation management issues and indigenous issues, to help them write the proposal. The County
Administration financially supported the samebys in producing their proposal. The representatives
came to work as a reference group in this task, and many meetings and discussions finally led to
the finished product in the year 2000. They called their proposal Mijá Ednam (Our Land)20 and they
also later established an economic association with that same name in order to better safeguard their
18 This argument was never seen in any official documents but was shared with me in conversations on several occasions.
19 In other World Heritage sites where indigenous culture is part of the actual justification for inscription, such as Kakadu
and Uluru-Kata
Tjuta
- National Parks, traditional owners have majority representation on the management boards. This
was something that the samebys pointed out when arguing for Sami control of the management of Laponia (c.f. Mijá
Ednam, pp. 27-28).
20 Mijá Ednam 2000.
93
interests in the World Heritage site. In the Mijá Ednam proposal, the local Sami explained the reasons
behind their determination to take a leading role in the future management of the area:
“We Saami have managed Laponia for thousands of years. We have the knowledge,
tradition and motivation to continue to manage Laponia without leaving major traces in the
landscape – in spite of new times and modern technology. We are firmly determined to take
our responsibility for the preservation of nature and the biological diversity and we think
that we are particularly well suited to preserve the Saami culture in the area. We fully
support the goals for the World Heritage site and want to formulate our own strategies in
order to reach them. We also welcome an equal co-operation with other parties.” 21
The Mijá Ednam proposal shared many goals and objectives with the proposals from the other
actors but was distinguished by one decisive factor: their demand to have majority representation
on any future management board. Again, the other local actors did not agree, citing a concern that
it was not possible within the framework of existing regulations.
After this followed several years of attempted talks, negotiations, stranded discussions,
proposals and rounds of review statements.22 The samebys persisted in their insistence on holding
the majority of seats on the management board. They made it clear to the other local actors that
they would not engage in any form of negotiations before this issue was addressed. This strategic
choice was not understood by the others. Representatives from both the municipalities and the
County Administration thought that it would be better to talk about the issues they agreed upon in
order to get the development going and then save the difficult questions for later. But the samebys
stood firm in their beliefs, and their representatives believed that it would serve their cause better
to remain outside the negotiations. This emphasized the importance of their main objective: to be
in a responsible position in the management organization.
During these years of disagreement among the local actors, there was a clear polarization
between the local (reindeer herding) Sami and the authorities. Conflicts were acted out both
on a personal and on a more structural level.23 This was not the first time that the reindeer
herding Sami in the area had been in disagreement with the local authorities and, in many
ways, the argument over how to manage Laponia tapped into many of the matters that were
already in focus.24 What the World Heritage appointment did in this respect was very much
to act as a vent for the many unresolved issues, issues that related to ownership of land and
water, influence and control over the management of traditional land, and a wider goal of
increasing Sami autonomy.
21
22
23
24
Ibid., p. 9. Translation in Dahlström 2003, p. 323.
I have described these events in detail in my doctoral thesis. See Green 2009.
For further details, see Dahlström 2003 and Green 2009.
Examples of such issues were predator politics in relation to reindeer herding, ownership/user’s rights over traditional
Sami land, tourism, Sami influence over nature conservation plans and policies, small game hunting in the mountain
areas, the ongoing discussion as to whether or not Sweden should ratify ILO Convention 169 (on Indigenous and Tribal
Peoples), and general questions related to the revitalization of Sami cultural heritage and language.
94
On a few occasions during this period in the process, national bodies were officially contacted.
As a state agency, the County Administration had close contact with both government departments
and the SEPA. Also in 2001, the samebys wrote an open letter to the government, seeking
assistance going forward in the negotiations. However, the response from the government at the
time was that this was a matter that should be resolved on a local level, and that it was the County
Administration’s responsibility to see that the negotiations continued in a satisfactory manner.25
Local influence in environmental protection, let alone Sami influence, has not been a reality in
Swedish natural protection policy, in spite of the fact that this is something that is an aim in many of
the conventions Sweden has ratified26 and has been the objective of some reviews commissioned
by the government.27 Because Laponia had the potential to be of a precedential nature the wider
Sami community showed an interest in the development of the Laponian process. The Sami
Parliament was occasionally briefed about the situation, even though it did not have any official
role or play any active part in the negotiations.28 Different Sami politicians active on both national
and international scenes also worked as advisory partners to the samebys’ representatives.
UNESCO was not active either in the development of the Laponian process, even though
representatives from Laponia approached UNESCO with their predicaments on a few occasions.29
In Sweden’s 2006 periodic report on the state of conservation of the Laponian Area,30 it is noted
that the site still lacks a functioning management plan but this document in itself did not lead to
any further action on the part of the World Heritage Committee or on the part of the Swedish
national authorities. The opinions of the samebys were not asked for in the periodic report. It was
the Swedish National Heritage Board that was the authority responsible for submitting it and, in the
work of producing it, only officials from the national and local authorities were asked to contribute.
This led to some irritation among the samebys’ representatives and was seen as a typical example
of how the Sami were being left out of the process.
The table turns
In the fall of 2005, almost ten years after Laponia had been inscribed on the World Heritage list, the
table suddenly turned. The representatives of the samebys were called to a meeting by the County
Governor to resume the negotiations over the management issue. This time they were promised
that the question of a Sami majority on a management board would indeed be brought into the
discussion. The talks resulted in a proposal, signed by all three local actors, on how to go forward
25
26
27
28
Ministry of Agriculture 2001, Reg. No 2001/2594/SU.
For instance in the Convention on Biological Diversity.
Tunón 2004.
This is most probably due to the fact that the Sami Parliament in Sweden is both a publicly elected body and a
state authority. This means that it is at times difficult for it to take a clear stance in certain matters that involve other
governmental authorities and this restrains it somewhat from emphasizing Sami autonomy and self-governance.
29 Green 2009, pp. 135, 145ff.
30 UNESCO 2006.
95
The board of Laponiatjuottjudus, the management organization of the Laponian Area, in 2011.
Photo: Daniel Olausson
with the organization of Laponia’s management and this was sent to the government in 2006.31
This proposal entailed, among other things, plans for a Sami majority on the management board.
The government this time gave the County Administration an official mandate that would allow for
a strong Sami influence, and even control, of the management.
A new Laponia delegation was given three years to produce a management organization for
the area and the work of forming a Sami-controlled management structure began for the three main
local actors, together with SEPA. In June 2011, the government officially gave its blessing to the
new management organization to be established. In the press release, the government said that
the new proposal was in line with the government’s view on the need for improved possibilities for
local influence and responsibility on conservation management.32
With the new management structure, most of the Sami objectives, which they had struggled so
hard to achieve for years, have in many respects been put into practice. In retrospect, it seems that
the local disagreements and polarized positions that lasted for so long were overcome surprisingly
effortlessly and suddenly. Many people with an insight into the process were both astonished and
delighted to see this new turn of events. There is no simple explanation to the sudden change in
31 County Administration of Norrbotten 2006, p. 2, Reg. No. 11523-2006.
32 Ministry of Environment 2011.
96
attitude from the authorities’ side but there are a few things that are worth pointing out as important
in breaking the dead-locked position of the actors involved.
One important factor is that new people had come into the process. A new County Governor
was appointed in 2003 who saw it as important to resolve the Laponian issue and get a proper
management organization in place. Some of the involved individuals had been replaced (especially
from the local authorities) and some of the old personal grievances therefore came to a natural
halt. Another reason is to be found in the fact that the Laponian issue had become increasingly
embarrassing for the Swedish government and there were signs of international pressure to
include the indigenous population better in these kinds of ventures. Different varieties of joint
management or cooperation projects between state authorities and indigenous peoples were
becoming more common throughout the world and, in this respect, Sweden was lagging behind
many other comparable nation states. Equally important for the positive turn of events was the
fact that the representatives from the samebys, and the different Sami interest groups and political
parties, managed to achieve relative unity on issues that related to Laponia. Needless to say there
were differences of opinion, heated discussions and various aspirations and expectations linked
to the World Heritage site but, in discussions with the other actors, they managed to go forward
as a unified group with one major objective (Sami majority on the management board) rather than
having many disparate aims. This was, in fact, a conscious strategy. The importance of ‘speaking
with one voice’ was recognized as imperative in order to be better heard and recognized as a
strong valid actor in relation to the local authorities.
Today, the management organization is characterized by local Sami viewpoints and principles.
In the new management plan,33 the protection of Sami cultural values and historical sites is
emphasized and the reindeer herding industry is put into focus. The protection of natural values is
no longer separated from the protection of a living cultural landscape that is open to development
and sustainable change. There are also plans to strengthen the possibilities for developing
tourism enterprises in the area, but in a manner that does not jeopardize the sustainability of the
environment. The Sami language has been incorporated into the working documents and into the
management structure itself. The new management organization is now called Laponiatjuottjudus
(the Laponian management).
The board consists of nine members, five of whom are appointed by the local samebys. The
other members comprise two representatives from the municipalities (of Jokkmokk and Gällivare),
one from the regional County Administration office and one from SEPA. However, the issue of
having majority representation of Sami on the management board has today been somewhat
toned down. It is, nonetheless, an important statement that substantiates the leading Sami role
in the process, but today the decision making process is guided by the principle of consensus,
thus making the majority issue less significant. The board members are appointed on a two-year
mandate. There is also an annual assembly, with representatives from all parties concerned.
The annual assembly also has a Sami majority representation and one of their assignments is to
appoint the Chairperson of the board.
33 Laponiatjuottjudus 2012.
97
In the new management plan, the Laponiatjuottjudus spells out the importance of respect,
open communication and ongoing dialogue among all the actors involved and in relation to the
broader local community. This is looked at as a way of achieving the practical implementation of
local participation and the goal is that everybody can have an input and influence in the decisionmaking process. To ensure this, there will be a public deliberation – rádedibme – held at least twice
a year. Here, local residents, concerned entrepreneurs and organizations, and other parties have
the chance to meet, discuss and influence different issues related to the management of Laponia.
The Laponiatjuottjudus is of the opinion that a new, modernized management of the area
means applying a holistic perspective in which ensuring the protection of the World Heritage
values merges with a need to acknowledge the potential for sustainable development of the area.
According to this vision, Laponia will be a place where new technology can be applied together
with traditional knowledge in order to better monitor natural and cultural conservation efforts, and to
improve communication and influence among the parties. Management is to be seen as a process
in need of constant evaluation and renewal. In this process it is important to recognize that the
task of managing Laponia is itself an arena for learning (searvelatnja) for all actors involved. It is
also important to recognize and utilize Swedish administrative knowledge in combination with local
knowledge in the practical everyday management.
The new management plan also points out the importance of protecting and developing not
only the material heritage of the area but also the immaterial aspects. The intellectual and spiritual
cultural heritage of the local Sami will have an important role in the new management of the area.
This means that it is seen as important to protect and strengthen, for instance, narratives, memories,
spiritual values, knowledge and attitudes that are intrinsically connected to the landscape. Again,
care and reintegration of the Sami language is, in this respect, an essential component. It is equally
important to safeguard and support relations among people, and between humans and landscape.
The official decree from the government took effect on January 1, 2012, making the
Laponiatjuottjudus responsible and accountable for the management of the area. The sole mandate
of the County Administration for the area’s management is at an end and Laponia stands out as
a shining example of how local influence over environmental conservation can be implemented in
practice. A few, albeit important, concrete changes will come about in the area as a result of the
new management regime. For instance, the local reindeer herding Sami will no longer have to
seek permission from the County Administration to build huts or set up other constructions. From
now on, they only have to report this to the Laponiatjuottjudus. Nevertheless, the major important
change that is the result of the new management structure is the fact that the local Sami, together
with the other local parties, will now be responsible for managing the area. There is a shift in
influence and control from the national authorities toward a local and indigenous organization.34
From being a source of conflict and flawed communication, the World Heritage designation
of Laponia has now turned into an arena for the very opposite: collaboration and renewed
communication among local and national actors. Few would have guessed in the beginning of
34 I am deeply indebted to Michael Teilus, the Chairperson of Laponiatjuottjudus, for providing me with information on the
latest occurrences regarding the management process.
98
the process that Laponia and its management organization would one day stand out as a role
model for the international conservation community but, today, the story of the Laponian process
is beginning to attract global attention. As a matter of fact, the Laponiatjuottjudus was recently
presented with an award by the WWF for its progressive work on implementing local influence and
emphasizing communication and collaboration in conservation management.35
This means that a new chapter in Swedish environmental protection management is being
written. Laponia is the first area in which the indigenous Sami have gained an officially responsible
role in the management of their traditional lands. Hopefully this will, as the samebys’ representatives
predicted all along, be a first step towards a more progressive and forward-looking political agenda
in relation to the Sami in Sweden.
World Heritage and indigenous peoples – the Laponian example
One of UNESCO’s official goals is to support indigenous peoples’ culture and knowledge.36
However, as with most international organizations, the intentions articulated and the rhetoric used
in an international setting become generalized and malleable in order to unify as many different
interests as possible. When implemented locally, these goals and intentions must be interpreted
into the reality of the local context. For indigenous peoples, this often means that while the support
for indigenous causes is very strong at an international level, it is still difficult to find the means to
realize these intentions when relating to national and local authorities.37
The developments accounted for here in regard to Laponia can be said to reflect this situation.
As can be seen, it was very difficult for the Sami involved to gain attention for their demands
locally and nationally. On an international level, on the other hand, they did find support, first
and foremost through the international conventions referring to indigenous peoples that Sweden
has ratified.38 One can conclude that even if there is strong support for the protection and
development of indigenous cultural diversity, it is often difficult to implement practically and to
support indigenous aspirations in the local setting. International support does not often translate
into direct and practical encouragement or assistance on a local level. This ‘double standard’
also became visible in the early 2000s when indigenous peoples attempted to establish an
35 WWF 2011.
36 See, for instance, UNESCO Medium-Term Strategy for 2008-2013, in particular paragraphs 5 and 94. However, the
support for indigenous claims on an international level can sometimes be a ‘double edged sword’ for indigenous
peoples. Not only are their goals supported on this level, but there is also often a romanticized perception of them that
reinforces stereotypes and cements perceptions of indigenous peoples as anti-modern or natural conservationists. I
bring this up in my doctoral thesis, see Green 2009. It is also discussed by many other researchers, for instance Nash
1982; Redford 1990; Conklin 1997; Ellen et al. 2000.
37 Scott 1998, p. 13; Turtinen 2006, p. 58; Green 2009, p. 85
38 For the Laponian case, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) has not been of
much significance, since it was not adopted by the UN General Assembly until 2007. It was above all the Convention on
Biological Diversity that was referred to by the samebys. However, since 2007 the UNDRIP has also become essential
for the Sami political establishment as a tool in the ongoing work to improve the situation for the Sami in Sweden.
99
advisory council of experts called the WHIPCOE (World Heritage Indigenous Peoples Council
of Experts), which was to be directly linked to the World Heritage Committee. The goal was to
increase indigenous influence over the implementation of the World Heritage Convention and
safeguard indigenous rights and interests. However, in the end, states parties were not ready to
meet the demands of the indigenous peoples on this issue. If WHIPCOE had been established
as an advisory body of the World Heritage Committee, the problems faced by the local actors
in the Laponian process may have developed differently. The samebys may then have come
across more convincingly to the other actors.39
To conclude, one could say that the process of nominating the World Heritage site of Laponia
comprised both negative and positive experiences and results for the local indigenous Sami
community. In the work of preparing the application leading up to the inscription on the World
Heritage list, the local Sami were partly included and informed about the work being done.
However, their influence was not on an equal level with the local authorities, and they were not
treated as a separate negotiating partner. When the site was nominated and gained its status
in 1996, the local Sami decided to strengthen their position and demanded to be an actor in the
process, equal to the local authorities. They also demanded to have a strong influence and even
be in control of the site management. This was the start of a long and often frustrating process in
which the local Sami often felt brushed aside and ignored. By applying a strategy whereby they
refused to take part in negotiations until their main objective (to have the majority representation
on a future management board) was taken seriously, they managed to achieve, in the end, most
of what they had hoped for. Today, there is a management organization at work in the area,
where the Sami hold a majority on the board and reindeer herding rights and the protection and
development of the Sami cultural heritage are emphasized.
Many difficult issues still remain to be solved and there is an ongoing discussion among the
different actors within the Laponiatjuottjudus. However, the greatest achievement is the fact that
the parties are now involved in a positive communication on the future of the World Heritage
site, in spite of the fact that they may have different interests and perceptions of how the area’s
interests should be protected and promoted. The process of forming a cohesive management
plan for Laponia is an example of how a global intention is molded and interpreted in the
local context and how a World Heritage site can prove to be a platform for both conflict and
collaboration. In the end, Laponia became an arena for communication, in which longstanding
problems and predicaments that the local Sami had in their relation to the authorities were
vented and articulated. It was a process that showed the colonial structures still at work in
Swedish society but also, in the end, may prove to be an important step on the path towards
decolonization and increased self-governance.

39 Green 2009, pp. 97 ff.
100
References
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Based on a Comparison With Aotearoa/New Zealand and Canada. Luleå, Luleå University of Technology.
Beach, H. 1981. Reindeer-Herd Management in Transition. The Case of Tuorpon Saameby in Northern Sweden. Uppsala,
Acta Universitatis Upsaliensis (Uppsala Studies in Cultural Anthropology, No. 3).
Conklin, B. A. 1997. Body Paint, Feathers and VCRs: Aesthetics and Authenticity in Amazonian Activism. American
Ethnologist, Vol. 24, No. 4, pp. 711-737.
Cramér, T. 1966-2009. Samernas vita bok. Stockholm, The Author.
Dahlström, Å. N. 2003. Negotiating Wilderness in a Cultural Landscape. Pred ors and Saami Reindeer Herding in the Laponian
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Anthropological Perspectives. London, Routledge.
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Assistant Director General at the SEPA.
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markanvändningsförhållanden och -rättigheter i Västerbottens lappmark före mitten av 1700-talet (translation from
Finnish by B-S. Nissén-Hyvärinen). Helsinki, Jusristförbundets förlag.
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plan. February 2012.
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Available at: http://www.regeringen.se/sb/d/8149/a/170963.
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and Cooperation in the North. Umeå, Norrlands Universitetsförlag.
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Universitatis Upsaliensis (Historia religionum, Vol. 12).
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May 2011, last modified 17 August 2006).
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Uppsala University.
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CC-90/CONF.004/10, 29 October 1990.
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whc.unesco.org/en/list/774/documents.
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World Heritage Committee. 1996. Decision 20COM VIII.B - Inscription: The Laponian Area (Sweden). In Doc. WHC-96/
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102
103
The Sangha Trinational World Heritage Site:
The Experiences of Indigenous Peoples
Victor Amougou-Amougou and Olivia Woodburne
Introduction
T
he Sangha Trinational World Heritage site is located in the north-western Congo Basin where
Cameroon, the Central African Republic (CAR) and the Republic of Congo (hereafter Congo)
meet. It encompasses adjoining national parks in each of the three countries totalling an area of
746,309 hectares, collectively called the Sangha Trinational (TNS). These three national parks
are Lobéké National Park in Cameroon, Dzanga-Ndoki National Park in the Central African
Republic and Nouabalé-Ndoki National Park in Congo. The parks are set in a much larger forest
landscape, referred to as the TNS landscape, which includes the World Heritage site’s buffer zones
totalling 1,787,950 hectares. The TNS was inscribed on the World Heritage List in 2012 for its
outstanding natural values, with emphasis on the sheer size of this transboundary site and the
“ongoing ecological and evolutionary processes in a mostly intact forest landscape at a very large
scale”.1 The tropical forests of this region are home to many groups of people, including indigenous
1
World Heritage Committee Decision 36COM 8B.8 (2012).
Left: BaAka woman with her grandchild in a forest camp, Central African Republic. Photo: John Nelson
104
BaAka and Baka ‘Pygmies’.2 This chapter explores the inscription process for this large and
complex site, and focuses on the consultation process in Cameroon, where direct research was
conducted by one of the authors.
The peoples of the TNS
An estimated 18,000 people live in the buffer zones of the TNS,3 a number that includes indigenous
hunter-gatherers, their farming and fishing neighbours and many more recent immigrants. In Congo
and CAR live the BaAka4 Pygmies and a variety of other groups, including the Sangha-Sangha
fisher people.5 The Baka Pygmies and their farming neighbours the Bangando and Bakwele live in
Cameroon. Although not without debate, most researchers consider the Pygmy hunter-gatherers
to be long-standing inhabitants of the Central African forests, possibly for as long as 70,000 years.6
At some point, maybe 4,000-5,000 years ago, farmers speaking Bantu, Adamawa-Ubangian and
Central Sudanic languages encountered hunter-gatherers as they migrated into the forest regions.7
Oral traditions suggest that the hunter-gatherers guided the immigrant farmers and showed them
how to live in the forest, in return gaining access to cultivated foods, iron and salt.8 Importantly, both
the BaAka and the Baka are considered, by themselves and their farmer neighbours, to be firstcomers to the area and indigenous to the forests.9 Various farmer groups can also be considered
indigenous to specific regions, in recognition of their long-standing occupancy relative to more
recent immigrants, although they do not share the same kind of identity or historical relationship
with the forest as Pygmies do. This includes the Bangando and Bakwele in Cameroon and the
Sangha-Sangha fisher people in CAR.
The various Pygmy groups across the Congo Basin are enormously diverse, and yet there are
remarkable similarities in language, relationship with the forest, social interactions and music.
Whatever the historical links between hunter-gatherers in the region, all contemporary Pygmy
groups living in the TNS landscape have strong and significant links with each other.
The long-standing relationship between Pygmy groups and their farmer neighbours is complex
and has changed dramatically throughout history. There are generally two sides to this relationship.
2
3
4
5
6
7
8
9
The term ‘Pygmy’ refers to hunter-gatherers and former hunter-gatherers who are indigenous to the forests of Central
Africa. They share many cultural characteristics and many groups have historical and contemporary links with each
other. Although it is a contentious term that can have derogatory connotations, it is also used by Pygmy groups
themselves as a collective term that easily distinguishes them from other indigenous and non-indigenous groups. We
will therefore continue to use it here when more specific terms for individual groups are not appropriate.
Republic of Congo, Cameroon, Central African Republic 2012b, p. 74.
Also known as Bayaka and Bambinga as well as other locally specific names.
The Sangha-Sangha are specialist fishers, also practising agriculture, like other non-Pygmy groups.
Quintana-Murci et al. 2008.
Vansina 1990.
Lewis 2002.
For simplicity, we include all non-Pygmies in the category of ‘farmer’, although some - like the Sangha-Sangha - are
historically specialist fisher people. Non-Pygmy groups are also often referred to as ‘Bantu’ people.
THE SANGHA TRINATIONAL WORLD HERITAGE SITE: THE EXPERIENCES OF INDIGENOUS PEOPLES
105
Map 1: The Sangha Trinational World Heritage site and its buffer zone. Data source: IUCN and UNEP-WCMC 2013
First, and most visible, is the extremely derogatory attitude farmers have towards Pygmies,
manifested in oppressive relations. Some farmers consider that they ‘own’ a Pygmy family, often
dating back generations, and treat ‘their’ Pygmies as slaves. The other side of the relationship is
more positive, with hunter-gatherers recognised, through traditional stories, as teachers and
saviours without whom life in the forest would not be possible. On a practical level, Pygmies are
considered skilled hunters and (until recently) supplied much of the meat to farmers in exchange
for agricultural products. Pygmies are often seen as possessing mystical powers vital for taming a
wild and dangerous forest. For this reason, farmers often seek to participate in hunter-gatherer
rituals to ensure their safety in the forest.10
10 Joiris 1998.
106
In addition to the indigenous peoples, there are also large numbers of immigrant families
attracted by successive waves of industry, including coffee plantations, logging, diamond mining
and conservation, who have made these forests their home. Many of these families have lived in
well-established villages for generations and have formed their own relationships with indigenous
farmer and hunter-gatherer groups.
In Lobéké National Park in Cameroon, the Baka traditionally lived in small nomadic groups
dispersed throughout the forest and, as in other areas, are said to be the first inhabitants. Bangando
farmers settled in the area some 200 years ago and live primarily in villages around the park. Baka
now build semi-permanent settlements associated with these villages and periodically establish
temporary forest camps.11 The amount of time spent in forest camps versus the villages varies
widely from place to place, and even between individuals of the same group. In 1986 it was
estimated that Baka around Lobéké spent between five and six months a year in the forest, with
two to three of those spent in remote areas.12 This pattern is similar in CAR and Congo and, in all
three countries, large areas customarily used by Pygmy communities have been included in
national parks, where all access is prohibited.
The national parks
The tropical rainforests of this region are considered relatively intact and are home to an enormous
diversity of animal and plant life. Mega-fauna including forest elephants, gorillas, chimpanzees and
buffalo attract ecologists and tourists alike, as do the natural forest clearings characteristic of these
forests, called ‘bais’, where large numbers of animals congregate. Lobéké National Park in Cameroon
covers 217,850 ha of forests, with surrounding multiple-use zones consisting of six community
hunting zones (487,600 ha), seven safari hunting zones (738,000 ha), six community forests (30,000
ha) and 14 forest management units owned by logging companies (911,454 ha), making the total
area 1,470,799 ha.13 Within these buffer zones there are an estimated 4,517 people, according to the
World Heritage nomination document.14 However, in the management plan for Lobéké – submitted as
part of the proposal – it specifies that some 12,000 people live in the villages linked to the protected
area, and a total of 30,000 in the region peripheral to the protected area, around half of whom are
immigrants attracted by logging concessions and other employment opportunities.15
Lobéké was established in 2001 after a decade of activity by conservation agencies in the
region, including the World Wide Fund for Nature (WWF) and the German development aid agency,
GTZ. The park was created with the intention of integrating local communities and other
stakeholders into the sustainable management of resources. This was partially achieved through
the creation of committees to participate in the management of multiple-use zones. This participatory
11
12
13
14
15
Jell and Schmidt Machado 2002.
Joiris 1992.
Usongo and Dongmo 2010.
Republic of Congo, Cameroon, Central African Republic 2012b.
Ministère des Forêts et de la Faune Sauvage 2004.
107
approach has resulted in use rights for local communities and represents a move towards greater
recognition of customary rights. However, the indigenous Baka who rely on the forest more than other
groups were sidelined and marginalised throughout the entire process. The committees were
dominated by local elites and, in one example, only 10% of participants were from the Baka majority,
and even these appeared to have been chosen by non-Baka local people.16 The committees were
therefore not representative of the local communities, causing conflict as, for example, safari
companies were given permission by the committee to use land relied upon by Baka.17
It is a similar story across the borders in CAR and Congo. The Dzanga-Sangha Protected Area
Complex in CAR consists of two national park sectors (the Dzanga and Ndoki) and the DzangaSangha reserve, where forest access and use is restricted but permitted.18 In Congo, the NouabaléNdoki National Park was established in 1993. The customary land rights of BaAka in these
protected areas also remain unrecognised, and meaningful BaAka participation in protected area
management is virtually non-existent.
Impacts of conservation policies on the indigenous peoples
Although most hunter-gatherer groups in the region today are settled in roadside villages, their
relationship with the forest remains an enduring and essential component of their identity as
forest people. While many hunter-gatherers now cultivate on a small scale, and some work for a
wage in logging or conservation and development, most continue to rely primarily on the forest for
their economic survival. Meat is obtained using traditional hunting methods including nets, spears,
crossbows and dogs. A number of plant foods continue to be collected, such as various types of
leaves, mushrooms, nuts, seeds, roots, tubers and honey. Meat and plant foods are used for both
subsistence and to generate cash to purchase other essentials such as clothes, soap, salt and so
on. The forest is also the source of building materials and medicine. It is generally acknowledged
that such practices, when conducted primarily for subsistence, do not threaten conservation efforts.19
All three national parks of the TNS have had profound deleterious consequences on the ability
of hunter-gatherers to continue their forest-related activities. Restrictions placed on where, when
and with what technology people may use the forest have profound ramifications for forestdependent communities. For example, a lack of access to plants and animals for subsistence and
trade or for medicinal purposes not only contributes to poverty and poor health but also fuels illegal
hunting practices as people have no other choice by which to obtain food, contributing to a decline
in game near villages.20 This also impacts on local social dynamics as Pygmies are no longer the
16
17
18
19
In the community hunting zone ZICGC 9 in November 2002. See Nelson 2003.
Ibid.
See Woodburne 2009.
Hunting and gathering practices cannot neatly be categorised as ‘traditional’ or ‘modern’, or easily defined as
‘subsistence’. Nevertheless, the major threats facing Central African forests and wildlife come not from the activities of
a relatively small number of hunter-gatherers but from large-scale commercial activities such as the bushmeat trade
and logging. See Schmidt-Soltau 2003 p. 536; Lewis 2008; Jost 2012.
108
primary providers of forest products to their farmer neighbours. Cultural practices such as the Jengi
dance,21 common to all groups in the region, only make sense in the context of the forest and, as a
result, religious practices have declined. Their way of life, such as their commitment to egalitarianism,
is contingent on the forest. Their very identity and world view is intimately tied to the forest, which
is often described as a ‘mother’. Many pathways that connect distant parts of the forest are blocked
by the national parks, meaning that journeys following traditional paths and lasting many months
no longer take place,22 contributing to sedentarism and compounding all the problems associated
with the loss of forest access.
Among BaAka in CAR, traditional stories tell how they came to live in the forest and why farming
peoples live in the villages. Through these stories, BaAka feel that their rightful place is the forest and
that it was given to them by Komba (God) to live in. However, this does not constitute ‘ownership’ in a
Western sense. BaAka believe that anyone can enter the forest and that no one has the right to
prevent others from entering. Even though BaAka were given the forest by Komba, they do not
believe this confers exclusive rights on them. When conservation policy gazettes areas of the forest
and excludes all others from entering, BaAka perceive this as a violation of the principle of land
ownership as they see it.
“Komba left the forest for BaAka because we know the forest well. BaAka don’t keep others
out of the forest because Komba gave it – no one owns it. Komba does not keep others
out of the forest. There is no problem if a [Farmer] walks in the forest, or a white person,
because it is for everyone.”
BaAka man from Yandoumbe in CAR, 2009
In general, BaAka in CAR welcomed some aspects of conservation – such as limiting destructive
practices to preserve the forest – but were angry at the way it was carried out. They felt they
saw limited benefits from conservation and reported serious human rights abuses by eco-guards
who patrol the forest. BaAka rights to access and use the forest, given to them by Komba, were
undermined and ignored in the creation of the national parks. This in turn has a profound influence
on how BaAka understand and interact with conservation projects.23
A landscape approach
In recent years, conservation in Central Africa has moved towards a ‘landscape’ approach in
which large areas are managed with a view to incorporating multiple uses, including subsistence
activities, tourism, logging and other commercial enterprises. This integrated approach claims to be
inclusive of local needs while also protecting natural resources across an entire landscape.24 The
20
21
22
23
Woodburne 2012.
Known as Ejengi in CAR and Congo, Jengi in Cameroon.
Louis Sarno, personal communication.
See Woodburne 2012.
109
reality on the ground in these countries right now, however, is that conservation organisations often
use military style eco-guards to enforce the restrictions on hunting and gathering while industrial
activities continue unchecked, causing huge ecological damage. Human rights abuses against
local people perpetrated by eco-guards are common.25 A fuller analysis of the landscape approach
and its suitability for these countries is beyond the scope of this paper26 but it is important to note
that it is with this approach to conservation that the TNS was conceived and is managed.
The Central African World Heritage Forest Initiative (CAWHFI) is a collaborative undertaking
between UNESCO’s World Heritage Centre and various partners, including the Food and Agricultural
Organization (FAO), international conservation NGOs (WWF, Wildlife Conservation Society,
Conservation International) and national protected area authorities. CAWHFI supports clusters of
protected areas that have potential to become World Heritage sites. Within this, there is a focus
on policing the bushmeat trade and a major part of CAWHFI’s funding goes to help national park
authorities implement restrictions on hunting, often against local people practising subsistence
hunting and gathering. The involvement of local communities in the initiative has been minimal
from the outset. Even at CAWHFI’s inception in 2004, it was criticised that “84% of funding is for
enforcement activities and no funding is planned for community consultations, co-management
initiatives or capacity building. Indeed no local NGOs were consulted in the elaboration of
CAWHFI”.27 The TNS is one of the landscapes supported by CAWHFI since its creation in 2004,
with the goal that the TNS would be inscribed as a World Heritage site. The World Heritage
Centre has thus been actively pursuing the TNS inscription for many years – through CAWHFI
– and was one of the primary driving forces behind it.28 Given the abysmal record of this site in
terms of meaningful consultations with indigenous peoples and local communities (discussed
further below), the role of the World Heritage Centre in the development of this World Heritage
site nomination is highly problematic, especially when viewed against UNESCO’s responsibility
and declared commitment to uphold and proactively seek to protect the rights outlined in the
United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).29
Local participation in the nomination process
The development of the World Heritage nomination of the TNS has, from the very beginning,
been characterised by an absence of meaningful consultation with indigenous peoples and local
communities. The original nomination document, submitted to the World Heritage Committee in
2010, was developed with minimal and sub-standard participation of indigenous peoples and local
communities, a fact recognised by the World Heritage Committee itself. At its 35th session in 2011, the
24
25
26
27
28
29
For a fuller discussion of the landscape approach to conservation, see Franklin 1993; Poiani et al. 2000; and Yanggen 2010.
Nelson and Hossack 2003.
See for example Lewis 2008.
Lewis 2004, p. 16.
UNESCO World Heritage Centre 2010.
See UNDRIP, Arts. 41 and 42. On UNESCO’s declared commitment, see for example Matsuura 2007 (Message of
UNESCO’s Director-General on the occasion of the adoption of UNDRIP by the UN General Assembly).
110
Committee referred the nomination back to the State Parties to allow them to, among other things:
“Increase further the involvement and representation of local and indigenous communities
in the nomination process and future management, in line with stated commitments, in
order to fully recognize the rich tapestry of cultural and spiritual values associated with the
property, and in recognition of contributions by local and indigenous communities, such as
local knowledge and adapted resource use practices…” 30
The Committee also encouraged the three States Parties to “Evaluate the potential application of
cultural criteria to the nominated property (i.e. nomination as a mixed property), taking into account
the rich indigenous cultural heritage of the area”.31
The Committee’s decision to refer the TNS nomination was based on the observations of its IUCN
Advisory Body in its technical evaluation of the nomination dossier.32 IUCN had found that: “there is a
rich cultural heritage associated with the nominated property, but this has not been strongly considered
within the nomination and this has been noted as a concern regarding the appropriateness of the
nomination” and that: “The importance of local knowledge does not feature prominently in the
nomination but might deserve more consideration in wildlife management”.33 Moreover, IUCN had
highlighted in its evaluation “that in two of the three nominating countries, indigenous resource use is
entirely banned in the nominated property, while in the remaining country resource use is partially
permitted raising questions of the involvement of local residents”.34
As a result of the referral, each of the three States Parties undertook a consultation process with
communities living in the buffer zones. According to a document submitted by the three States Parties to
UNESCO in June 2012, the objectives of the consultations were that “indigenous peoples and local
communities were informed about, have understood, and have given their approval to the possible World
Heritage site inscription”.35 This was presumably meant to suggest that the consultation process was in
line with the principle of free, prior and informed consent, as required by international human rights law,
including UNDRIP.36 However, there are a number of serious concerns as to how these consultations
were conducted. The discussion of the consultations here will focus specifically on the actual experiences
of communities in Cameroon, as direct field research was carried out in these communities.
30 Decision 35COM 8B.4.
31 Ibid. para. 2.d.
32 Note that IUCN had recommended a deferral rather than a referral. In the case of a deferral, “more in depth assessment
or study, or a substantial revision” by the States Parties would have been necessary, followed by a new site evaluation
(including field visit) by IUCN. The referral by the Committee meant that only some “additional information” was needed
and that the nomination could be resubmitted to the following Committee session for examination. See the Operational
Guidelines for the Implementation of the World Heritage Convention, paras. 159-160.
33 IUCN 2011, pp. 9, 10.
34 Ibid., p. 8.
35 Republic of Congo, Cameroon, Central African Republic 2012a, p. 1.
36 See, e.g., Art. 32(2) of the UNDRIP, according to which “States shall consult and cooperate in good faith with the
indigenous peoples concerned through their own representative institutions in order to obtain their free and informed
consent prior to the approval of any project affecting their lands or territories and other resources”.
111
Baka women and children in Akambi village north of Lobéké National Park. Photo: CEFAID
In Cameroon, authorities responsible for Lobéké and the periphery conducted a consultation
process with local communities in 13 different villages. In addition to indigenous Baka, the 13
consultation meetings included Bantu, employees of forest concessions, students and teachers.
The overall percentage of Baka participants in the consultation meetings was around 37%.37 This
process took place with the financial and technical assistance of WWF between January 27th and
February 1st, 2012 (6 days). This was the same period when the three States Parties and the Head
of Conservation of Lobéké National Park were meeting with UNESCO officials in Yaoundé to
finalise the nomination documents, which were then submitted on February 1st, before the
consultations were completed and certainly before any results of the consultations could have been
incorporated into the documents.38 This raises the question as to how the concerns, wishes and
views of the communities could have possibly been taken into consideration or reflected in a
document that was being finalised and submitted at the very time that the consultations were taking
place. Indeed, some of the communities were only visited after the application had been completed
and submitted. Key decisions relating to the nomination were made without discussing them with
the affected communities. For instance, the States Parties decided against re-nominating the
37 Republic of Congo, Cameroon, Central African Republic 2012a, p. 6.
38 See CEFAID 2012.
112
property as a mixed site, as the World Heritage Committee had suggested, without putting this
option to the indigenous communities. Moreover, the nomination documents were not made
publicly available for communities and organisations working with them to assess, and therefore
informed consent was impossible.
Furthermore, a number of serious concerns were raised by local observers in Cameroon
regarding the quality of the consultations that were carried out. These concerns were detailed in a
report by local NGO, CEFAID, which was invited to follow the consultation process in Cameroon.39
From the outset, it was clear that the planned consultations were inadequate. Very little time was
allocated to each community and, even then, the schedule was unrealistic. This meant that, in
reality, only brief meetings were held in each community, sometimes lasting less than 30 minutes.
Unfortunately, even these short opportunities to engage with local people were not put to good use.
In many cases, the authorities spoke to community members about unrelated issues such as
security, poaching and hygiene. Furthermore, the large size of the visiting teams – more than seven
people, including the mayor, gendarmes, police and others – was intimidating and alarmed
community members. Coupled with the authoritarian nature of the speeches and the swift exit of
the group, the community was left with no meaningful opportunity to ask questions, consider the
implications of the project, discuss amongst themselves or share their concerns. This style of consultation
– where powerful local authorities dictate to local communities – is wholly inappropriate for a participatory
process that should genuinely engage local people on an equal footing, not only incorporating their views
but making them equal partners in the process. In fact, in accordance with the UNDRIP, consultation with
indigenous peoples should occur through indigenous peoples’ own decision-making institutions and
procedures. There is no indication (from the ‘additional information’ document discussed below or
anywhere else) that any attempt was made to engage with such institutions or consider culturallyappropriate mechanisms for consultation. The CEFAID report concludes:
“[T]he consultation process did not make it possible for the communities to gain sufficient
information to provide their opinion on the nomination of their forest landscape as a World
Heritage Site. Not only did the process fail to facilitate their understanding of the impacts of
a concept which was completely new to them, but it also gave them no time to digest the
information about the purpose of the consultation… [Q]uite simply, no-one in the villages
visited was able to gain sufficient information or clarification about the proposal with a view
to giving their opinion freely.” 40
An ‘additional information’ document was submitted by the States Parties to UNESCO in June
2012, in response to concerns raised at the UN Permanent Forum on Indigenous Issues about the
consultation process in all three countries. This document, however, confirms that consultations
across the three countries took place between the last week of January and March 2012, despite
the proposal being submitted on February 1st, 2012.41 Consultations in all three countries occurred
39 Ibid.
40 Ibid.
113
after the submission date – in Congo no consultations at all were carried out before late February42
– clearly demonstrating that local views could not have influenced the nomination documents.
The ‘additional information’ document gives details of the participation process that are
completely at odds with what CEFAID witnessed in Cameroon. For example, it specifies that all
villages within the buffer zones of the nominated site were visited by the consultation teams. In the
case of Cameroon, however, this is misleading. As detailed in the CEFAID report, there were a
number of villages that were not visited, namely those along routes Mboy-Yokadouma and
Yokadouma-Momboé, and those along the Ngoko River. Furthermore, some of the “villages” stated
in the ‘additional information’ document in fact comprise a number of separate villages with separate
leadership structures.43 Yet others are very large – up to 4,000 people – and made up of a number
of separate neighbourhoods extending for up to 25km along the road. The short consultation times
of an hour or two cannot have hoped to adequately consult these large populations. The document
also states that “potential risks and benefits of the proposed World Heritage site nomination were
debated”, and yet, as described above, this was far from the case in Cameroon. Furthermore, it
claims that “all communities consulted approved of the World Heritage inscription”. Again, it is hard
to see how this was the case given that indigenous peoples’ consent should be free, prior and
informed and should be expressed through their own decision-making institutions. We have
highlighted serious issues with all of these principles.44 In CAR, the quality of the consultations was
probably better since civil society organisations had a greater level of involvement in planning and
implementation. Nevertheless, the fact remains that regardless of the quality of the consultations in
the three countries, none of them can possibly have influenced the nomination document given the
dates on which they were conducted, rendering them little more than an information-giving exercise.
What has happened since the inscription?
Despite these serious concerns regarding the consultation of local and indigenous peoples,
which were brought to the World Heritage Committee’s attention in a joint submission of over
41 See Republic of Congo, Cameroon, Central African Republic 2012a, pp. 4-6.
42 This despite the Republic of Congo’s enactment in 2011 of Act No. 5-2011 of 25 February 2011 On the Promotion and
Protection of Indigenous Populations, which requires the State to ensure that “indigenous populations are consulted
before the formulation or establishment of any project having effect on the lands and resources which they possess
and use traditionally”, and that “indigenous populations are consulted every time the State considers the creation of
protected areas likely to affect directly or indirectly their lifestyles” (Arts. 38, 39). The Act specifies that the consultations
with the indigenous populations must be conducted: “In good faith, without pressure and threat with the aim of
obtaining their free, prior and informed consent”; “Through institutions representing the indigenous populations or by
representatives they have chosen”; “By appropriate procedures taking into account their modes of decision making”;
and “By ensuring that all information about the proposed measures be provided to the indigenous populations, in terms
that are understandable to them” (Art. 3).
43 For example, Mbangoy and Nguilili each comprise two villages, referred to as Mbangoy 1 and Mbangoy 2, Nguilili 1
and Nguilili 2.
44 On the elements of free, prior and informed consent, see United Nations Development Group 2008, p. 28; and UN
Expert Mechanism on the Rights of Indigenous Peoples 2011, paras. 21-27.
114
70 indigenous organisations and NGOs,45 the resubmitted nomination was approved by the
World Heritage Committee at its 36th session in June 2012. Following the advice of IUCN,
the Committee inscribed the TNS as a natural World Heritage site, losing the opportunity to
celebrate both the natural and cultural aspects of the landscape. The result is that indigenous
cultural values do not form part of the recognised outstanding universal value of the site, and the
Pygmies’ rights to hunt and gather are not part of the TNS World Heritage site philosophy and
will thus always be considered secondary to the natural values.
In inscribing the TNS on the World Heritage List, the Committee followed the advice of IUCN,
which recommended an inscription despite noting in its evaluation report that the rich cultural
heritage associated with the nominated site had still not been strongly considered within the
nomination and that concerns had been expressed regarding the adequacy of the consultations
with local and indigenous communities. IUCN also noted that the establishment of the nominated
national parks had excluded local communities from previously used land and resources, that in
two of the three countries local resource use, including indigenous hunting and gathering, was not
permitted in the proposed World Heritage site “thereby affecting local livelihoods and creating the
potential for conflict”, and that there was a need to consider the livelihood needs and rights of local
and indigenous communities more thoroughly in the nominated areas.46 The fact that IUCN
nevertheless recommended that the nomination be approved, despite these serious shortcomings,
is justified in the evaluation report with the “view that inscription on the World Heritage List would
provide momentum to further and better consider these issues, and support the rights of the
traditional communities within the existing protected areas that make up the nomination”.47 In line
with this, the decision by which the TNS was inscribed (Decision 36COM 8B.8), drafted by IUCN
and adopted by the Committee without changes, requests the States Parties to:
“Increase further the involvement and representation of local and indigenous
communities in the future conservation and management of the TNS landscape in
recognition of the rich cultural heritage of the region, the legitimacy of their rights to
maintain traditional resource use and their rich local knowledge, including through
providing effective and enhanced mechanisms for consultation and collaboration…”
While this may appear to be a step in the right direction, there is, on closer inspection, nothing
in the World Heritage Committee’s decision that indicates that anything should be changed
with regard to the prohibitions on indigenous resource use in the World Heritage site. Rather,
the decision suggests that the livelihood needs of local and indigenous communities be
addressed in the “surrounding landscape” of the World Heritage site (i.e. the buffer zone). In
45 “Joint Submission on the Lack of implementation of the UN Declaration on the Rights of Indigenous Peoples in the
context of UNESCO’s World Heritage Convention” (IWGIA et al. 2012). The joint submission was formally submitted to
the World Heritage Committee by IWGIA on May 23rd, 2012.
46 IUCN 2012, pp. 45, 46, 48.
47 Ibid., p. 46.
115
fact, the decision even reinforces the prohibitions on indigenous hunting in the World Heritage
site by making them part of the statement of integrity, which categorically states that: “Logging
and hunting is banned in the national parks” (without there being an exception for indigenous
hunting). Therefore, while highlighting the legitimacy of indigenous peoples’ rights to maintain
traditional resource use, Decision 36COM 8B.8 at the same time perpetuates and cements
the exclusionary ‘fortress conservation’ approach that is in place in the national parks making
up the World Heritage site.
Formal and informal discussions following the inscription, in particular at an expert workshop in
Denmark in September 2012 organised by IWGIA, led to the partial recognition by some, such as
the head of conservation of Lobéké and WWF staff, that the consultation procedures had been
problematic, as identified in the CEFAID report.48 Some of the same officials who had been
responsible for these poor consultations were then charged with supporting a new local association
to carry out participatory mapping with local farmer and Baka communities. Many of the previous
problems have persisted, resulting in poor quality maps with many features missing, such as areas
of the forest used by local communities, the activities carried out there and the times of year they
are used.49 Yet again, meaningful participation has not occurred.
This has compounded the continued lack of involvement in the management processes of
conservation in Lobéké. Some local people remain opposed to the World Heritage site altogether,
others are deeply hurt and angry that they remain marginalised from conservation activities more
generally. This even led to violent outbreaks in Mambele on January 22nd, resulting in some WWF
officials retreating to Yaoundé. Local people were angry over the lack of benefits such as
employment, inadequate access to resources and the lack of local involvement.
Conclusion
Local people in all three TNS countries, particularly indigenous Pygmies who depend on the forest
for their material and cultural survival, are furious that their rights to use the forest have been
severely restricted by successive waves of conservation activities, of which the World Heritage
inscription is the latest.50 At the same time, they see destructive practices such as logging, mining
and large-scale poaching destroying their forest largely unchecked.
“You see, the park is bad because we are not allowed to go there. [Farmers] kill all the
animals with guns. Where is the [conservation] project? So many [poached] animals pass
here. That is the project’s fault.”
BaAka man, Yandoumbe, CAR, 2009
48 CEFAID 2013.
49 Ibid.
50 See for example Woodburne 2009; or Lewis 2008.
116
“Some people don’t like the [conservation project] because they have destroyed the forest
with all the boundaries [the different zones]...What can I do? I don’t have power to speak
about this problem. I don’t have the proper language...The [conservation project] came
and took the forest so that BaAka couldn’t stay there. They spoke to [farmers], not BaAka.”
Elderly BaAka woman, Yandoumbe, CAR, 2009
For the future, it is clearly essential that consultation procedures are completely redesigned to enable
the meaningful participation of all communities affected by the TNS. The brief consultations described
in the ‘additional information’ document provided by the States Parties do not constitute meaningful
participation as understood by indigenous peoples and required by agreements and standards such
as the UNDRIP. It is worrying that the World Heritage Committee accepted this totally inadequate level
of consultation, not only for the future of the TNS but also for other potential World Heritage sites.
We wish to make a number of recommendations to the World Heritage Committee. First, they should
insist that the conservation authorities lift the restrictions on indigenous hunting and gathering in the
national parks that make up the TNS site. The ecological role and traditional knowledge of the indigenous
people – particularly the Pygmies – should form an integral part of the management philosophy of the
site. Second, the World Heritage Committee should insist that indigenous and local people are included
in a meaningful way in the decision making and management of the protected areas. Finally, the World
Heritage Committee should continue to push for a re-nomination of the TNS as a mixed site so that the
cultural values of the indigenous peoples will be an integral part of the World Heritage site on an equal
footing with the natural values. The hunting and gathering way of life of Pygmy peoples includes unique
forest-related knowledge and skills as well as a social and religious life that is intimately tied to the forest.
As the World Heritage Committee has already indicated, this rich indigenous cultural heritage must be
recognised as being of outstanding universal value.

References
CEFAID. 2012. Proposal by the Conservation Authorities for the Inclusion of the Sangha Trinational on the UNESCO World
Heritage List: Report on the consultation process undertaken with local and indigenous communities living around
Lobeke National Park. 26th January to 2nd February 2012. Yokadouma, CEFAID.
CEFAID. 2013. The Sangha Trinational: the place and role of the actors involved following nomination as a World Heritage
Site and development of the process in the field. Yokadouma, CEFAID.
Franklin, J. 1993. Preserving biodiversity: species, ecosystems or landscapes? Ecological Applications, Vol. 3, pp. 202205.
IUCN. 2011. IUCN World Heritage Evaluations 2011. Doc. WHC-11/35.COM/INF.8B2.
IUCN. 2012. IUCN World Heritage Evaluations 2012. Doc. WHC-12/36.COM/INF.8B2.
IWGIA et al. 2012. Joint Submission on the Lack of implementation of the UN Declaration on the Rights of Indigenous Peoples
in the context of UNESCO’s World Heritage Convention. May 2012. Available at: http://www.forestpeoples.org/sites/fpp/
files/publication/2012/05/joint-submission-unpfii.pdf.
Jell, B. and Schmidt Machado, J. 2002. Collaborative Management in the Region of Lobéké, Cameroon: the Potentials and
Constraints in Involving the Local Population in Protected Area Management. Nomadic Peoples, Vol. 6, No. 1, pp. 180-203.
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Joiris, D. 1992. Entre le Village et la Forêt. Place des Femmes Bakola et Baka dans les Sociétés en Voie de Sédentarisation.
F. Pinton and M. Lecarme (eds.), Relations de genre et développement: femmes et sociétés. Paris, Orstom, pp. 125-148.
Joiris, D. 1998. La chasse, la chance, le chant: aspects du système rituel des Baka du Cameroun. PhD thesis. Université
Libre de Bruxelles.
Jost, C. 2012. Beyond hunters and hunted: an integrative anthropology of human-wildlife dynamics and resource use in a
central African forest. PhD thesis, Purdue University, USA.
Lewis, J. 2002. Forest Hunter-Gatherers and their World: A Study of the Mbendjele Yaka Pygmies of Congo-Brazzaville and
their Secular and Religious Activities and Representations. PhD thesis, University of London.
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resources. Some issues for conservation. Available at: http://www.radicalanthropologygroup.org/old/pub_abundance_to_
scarcity.pdf.
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the United Nations Declaration on the Rights of Indigenous Peoples by the UN General Assembly. 24 September 2007.
Ministère des Forêts et de la Faune Sauvage. 2004. Plan d’Aménagement du Parc National de Lobéké et de sa Zone
Périphérique. Période d’exécution: 2006-2010.
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No. 67 (February 2003).
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[Copy on file with the authors.]
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Mondial 2012: Trinational de la Sangha [World Heritage nomination]. Available at: http://whc.unesco.org/uploads/
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Central African regional Program for the Environment (CARPE). Gland, IUCN.
118
119
‘We are not Taken as People’:
Ignoring the Indigenous Identities and History of
Tsodilo Hills World Heritage Site, Botswana
Michael Taylor
Introduction
T
he Tsodilo Hills are an enigmatic outcrop of copper-coloured inselbergs that rise out of the
Kalahari sands of north-western Botswana. The Male Hill reaches 400 metres above the sandy
plain, and is the highest point in Botswana, standing like an imposing sentinel above a landscape
that is otherwise almost flat for hundreds of kilometres in any direction. He is accompanied by the
more extensive but not so high Female Hill, rich in wild foods and hosting the only permanent water
sources in the Hills. Next is the smaller Child Hill, and then an outlying pile of rocks referred to as
the Grandchild. Together, they cover an area of around ten square kilometres. They are among the
last remnants of an ancient mountain range and have resisted erosion over 1,500 million years.
Beyond its geological uniqueness, Tsodilo is widely known for its 4,500 rock-art sites,
representing one of the highest concentrations of rock art in the world. Despite their remoteness,
the Hills have, for millennia, been a magnet for human use and habitation. The relative abundance
of water, wild foods and grazing attracted Khoesan populations, for whom the Hills also became an
important ritual site. The Hills also attracted Bantu speakers when they arrived in the subcontinent
Left: Gxao C’untae, elder of the Juc’hoansi village at Tsodilo, at the time of the preparation of the World Heritage nomination.
Photo: Michael Taylor
120
over the last millennium, for the same reasons, and in the early colonial period became an object
of curiosity for intrepid explorers. It was declared a National Monument in 1934 by the British
colonial administration but remained relatively unknown to the outside world until the second half
of the twentieth century, when it was popularised by authors such as Francois Balsan (1953), who
dubbed it the “Louvre of the Desert”, and Sir Laurence van der Post, who made it a centrepiece of
his book Lost World of the Kalahari in 1958.
Tsodilo has two villages today, about a kilometre apart from each other; one is a village of
Juc’hoansi (Khoesan) with around 60 residents; the other is Hambukushu (Bantu-speaking) with
around 140 residents.1 Both of these were seasonal settlements until several decades ago. The
extended families of both villages have an historical association with the Hills that stretches back to
the late 1800s when the ancestors of the Hambukushu now living in Tsodilo migrated to the region
from present-day Angola. Around this time, the ancestors of the Juc’hoansi, who had probably used
the Hills as an occasional hunting and gathering ground for much longer, established their presence
in the Hills more frequently. Preceding both groups was another Khoesan group known as NcaeKhoe,
who no longer live in Tsodilo but whose names are still used for many areas in the Hills.
The Tsodilo Hills are iconic for the Khoesan, the first peoples of southern Africa, for reasons
other than those most widely known or emphasised in the usual representations by UNESCO
and others. This chapter will describe why they are so important to the history and identity of
Khoesan, particularly Khoesan land rights, and how this has been affected by the designation of
World Heritage status to Tsodilo in 1998. But first to contextualise; who are the Khoesan?
The Khoesan – genetically among the oldest human populations – inhabited the African
subcontinent for many millennia before the arrival of Bantu speakers. They exist now – as many
other Indigenous peoples also do – as scattered minorities: scattered across national borders (of
a total population of 100,000, 50,000 live in Botswana), linguistically (in over 15 different language
groups, several of which are spoken by only a handful of survivors), and in terms of access to power
and influence, living on the edge of the societies that have dominated them. Their distinct cultural
heritage and identity became a symbol of shame to their non-Khoesan neighbours and even to
some Khoesan because of its association with poverty. Nonetheless, over the past two decades,
with the birth of Khoesan cultural organisations and a new generation with access to education and
an ability to link with wider Indigenous peoples’ movements, many Khoesan have been working to
claim a place of pride and dignity as equal citizens in the countries in which they live.
The marginalisation of the Khoesan, and their struggle for cultural identity and dignity, is most
closely related to the loss of their lands. As Khoesan heritage and identity are closely tied to
association with and use of land, the large-scale loss of their lands through appropriation by more
powerful neighbouring groups, and the state (often in the name of nature conservation), has not only
contributed to the impoverishment of Khoesan but has also undermined their identity and standing in
wider society. Conversely, the struggle for recognition of their land rights has, over the last decades,
become the spark that has galvanised collective action and an assertion of Khoesan identity.
1
Khoesan is the umbrella term for the First Peoples, or Indigenous peoples, of southern Africa. Each Khoesan language
group has its own name, including Juc’hoansi and Ncaekhoe. Bantu-speakers, including Hambukushu and Batawana,
are the majority population of the subcontinent, whose habitation of the subcontinent stretches back several millennia.
IGNORING THE INDIGENOUS IDENTITIES AND HISTORY OF TSODILO HILLS WORLD HERITAGE SITE, BOTSWANA
121
Map 1: The Tsodilo World Heritage site and its buffer zone.
Adapted from a map contained in the World Heritage Nomination Dossier
The significance of Tsodilo in the history of Khoesan
In the 1980s, the Department of National Museum, Monuments and Art Gallery (hereafter National
Museum) initiated a series of archaeological expeditions that, over the next decade, began building a
picture of the prehistory of the region that was to challenge many long-held assumptions of the peopling
of southern Africa. Far from being the remote region of the Kalahari that it is today, the archaeological
record revealed Tsodilo to be a trading hub in the last millennium, with some of the oldest remains
of human habitation in the subcontinent, stretching back 100,000 years. The research at Tsodilo
sparked a body of revisionist scholarship that reinterpreted long-held orthodoxies that Khoesan had
always been hunter-gatherers. The archaeological record was interpreted as evidence that many had
been livestock keepers and controlled trading routes in centuries past. Their status as purely huntergatherers is, from this perspective, a reputation gained in the wake of their dispossession during the
rise of mercantile capitalism in the early-mid nineteenth century.
122
In other words, archaeological research at Tsodilo has caused major re-interpretations in
understandings of the Khoesan peoples, and their position relative to the Bantu speakers in
whose societies they now generally live as an underclass. It is now generally held that at least
some Khoesan populations controlled land, livestock and trade. However, this began to change
in the early 1800s when the Batawana (Bantu speakers) began forming a powerful centralised
kingdom in what is now north-western Botswana. This involved subjugating the Khoesan into
servitude and taking over their lands, as had happened elsewhere in the subcontinent. Over the
course of a century, the Khoesan in Ngamiland were almost completely subjugated.
However, both oral history and the historical record of early explorers and the first colonial
administrators in the final decades of the 19th century note a remarkable fact about Tsodilo:
that it remained the recognised territory of Khoesan despite their political subjugation.2 As
such, it was the last known island of Khoesan territory in the Kalahari where ownership of the
Indigenous inhabitants was recognised and respected. The appropriation of Khoesan territories
in Ngamiland had been brutal, achieved through widespread forced servitude and killings. Of
the many Khoesan groups who lived on the fringes of the Okavango Delta, the Ncaekhoe were
the last to resist paying tribute to the growing Batawana kingdom, demanding instead that the
Batawana, as latecomers, should recognise them as the original owners of the land. In a society
that was becoming increasingly hierarchical, their stand did not last. In 1881, a regiment was
detached by the Batawana king and the Ncaekhoe leader assassinated. Nonetheless, Tsodilo
remained the recognised land of Ncaekhoe and Juc’hoansi until the end of the 19th century,
when they finally capitulated. Part of Tsodilo’s significance in recent history is as one of the last
outposts of undisputed Khoesan ownership, an area of land that its Khoesan owners were able
to protect as their own.
Tsodilo remains central to the contemporary identity of the Indigenous peoples living there,
and nearby, as it is said to be the place where God created the first human, Kharac’umae, the
progenitor of all Khoesan, and of the first wild animals. The marks they are believed to have left
on the still soft rocks of the Female Hill are still visible today at a site called Gobekho. Most likely
drawing on the myths of the Khoesan whom their ancestors encountered in the Hills, Hambukushu
in the area talk of Tsodilo as the place where God let down the first people and cattle with a rope
from the sky. To both the Juc’hoansi and Hambukushu, the Hills are a living terrain, containing sites
that not only tell stories about their heritage and identity but also host Spirits capable of healing,
assisting in hunting and providing rain.
The most tangible and widely-recognised association between Tsodilo and the Indigenous
peoples of southern Africa, however, is the 4,500 or so rock-art sites that are scattered around
the Hills. Painted almost entirely in the prehistoric period by the ancestors of the Khoesan, Tsodilo
is one of the only rock-art sites – of the hundreds that exist in the subcontinent – where the
descendants of Khoesan still live today.
2
For further references, see Campbell, Robbins and Taylor 2010.
123
View of the Male Hill, the tallest at Tsodilo. Photo: Mike Richardson / Sarah Winch (CC BY-NC-ND 2.0)
Designation as a World Heritage site
In December 2001, Tsodilo was inscribed as Botswana’s first World Heritage site. The designation
of World Heritage status was the result of a decade of planning and development by the National
Museum, which oversaw the application in its capacity as custodian of Botswana’s national
monuments. In 1994, a management plan was prepared which proposed core and buffer zones
and their uses. The core zone of 4,800 ha, including the Hills, was designated as being free from
permanent human habitation. In addition, a buffer zone of an additional 65,600 ha was designated
as a ‘conservation zone’. This was intended to “preserve the wilderness experience of visiting
Tsodilo” but with the intention that “management of the buffer zone will not interfere with the orderly
and desirable development of local communities presently living within the buffer zone”.3 The Land
Board granted the lease for the entire area to the National Museum in 2000. The lease explicitly
recognised customary community use rights in the buffer zone, but not in the core zone.
In 2000, the sand track to Tsodilo was upgraded to a gravel road, greatly increasing the
accessibility of the Hills to visitors. In 2001, a site museum was opened which offered visitors an
interpretive experience of the Hills. A number of guides from the Hambukushu and Juc’hoansi villages
3
Department of National Museum, Monuments and Art Gallery 1994, p. 2
124
were trained by the National Museum as guides. A Tsodilo Liaison Committee was established, bringing
together residents of the Hambukushu and Juc’hoansi villages to facilitate their participation; however,
the management of Tsodilo remained fully in the hands of the National Museum. Additionally, no clear
mechanisms were established to ensure that the particular interests of the Juc’hoansi – customarily
subordinate to those of their Hambukushu neighbours – would be taken into account.
With its new status and easier access, the annual number of visitors to Tsodilo grew
tremendously, passing the 10,000 mark in 2005. This has brought new opportunities for residents
of both the Juc’hoansi and Hambukushu villages; a curio shop at the museum sells handicrafts,
most of them made by residents of the Juc’hoansi village. All guides are local, as are some of the
jobs at the site museum. For what was the poorest village in the District in the early 1990s, these
opportunities have been significant. However, the changes have not come without a cost, and this
cost has largely been borne by the Juc’hoansi.
While recognising the existence of community rights, the management plan explicitly places
these, in cases of conflicting interest, as subordinate to the maintenance of Tsodilo as a Heritage
area. The most immediate impact of this was on the Juc’hoansi village because it fell inside the core
zone. Negotiations to move the settlement began in 1994 and, in 1997, the Juc’hoansi moved to a
site they had chosen near the new borehole, provided by the National Museum several kilometres
from the Hills. Procedures of the 1968 Tribal Land Act – which do not include the formal application
of Free, Prior and Informed Consent procedures – were followed for the relocation, including the
payment of compensation for rebuilding of dwellings. Despite the move being ‘voluntary’, many
residents subsequently complained that their increased distance from the Hills and the main
access route to Tsodilo curtailed their access, for example, to act as tourist guides, sell handicrafts
or gather wild foods. Three years after their move, a researcher noted a significant decline in the
use of the Hills by the Juc’hoansi.4 Following the removal of the village, the site museum and
dwellings for staff were built close to the original site of the Juc’hoansi village in the core zone.
The changes experienced by the two villages in Tsodilo have taken place in a context of diverse
and competing priorities between the Hambukushu and Juc’hoansi residents. These challenges
are not faced on a level playing field. The Hambukushu village has greater economic leverage (for
example, at the time of the move they owned 600 cattle compared to the 34 owned by Juc’hoansi).
More importantly, as external interests have become increasingly important in determining Tosdilo’s
future, the Juc’hoansi consider that the stigma they face as First Peoples has progressively
marginalised them from decision-making. This was described as follows by Gxao Cuntae, a senior
member of the Juc’hoansi village during the implementation of the 1994 management plan:
“We used to be alone on this land. There were no black people. After meeting Batawana in
the times of Mmamosadinyana [Queen Victoria] we met Hambukushu. They were not very
powerful as they did not have guns. They tried to tell us this was their land. From there the
government came in and Hambukushu told them this was their land, and the government
agreed. Now when things are done we are not listened to. We are not taken as people.
4
Puskar 2000.
125
No-one listens to us. He [Samuchao, head of the Hambukushu village] is the chief, but
that chief does not explain to anyone how he became chief, and he doesn’t tell anything
to those people he found on this land. He tells us we have no power, we have nothing, he
must be the chief. About those he found here, he says, ‘They are just Basarwa [Bushmen]’
and has no respect for them.” 5
One response of the Juc’hoansi has been to protect their autonomy where possible. For example,
when they relocated their village they declined Samuchao’s invitation to join the Hambukushu
village, choosing instead a site two kilometres away, even though this meant more difficult access
to the Hills and tourist traffic.
Ignoring the ‘Indigenous’ in Tsodilo’s ascension to Word Heritage status
Two parties were primarily involved in the process leading to Tsodilo’s recognition as a World Heritage
site: the National Museum as the responsible government department and UNESCO. The process
followed and documents prepared by both these parties gave minimal recognition to the Juc’hoansi as
Indigenous peoples and to the unequal context in which they live. They also placed little emphasis on
the significance of the intangible heritage of Tsodilo as a cultural landscape shaped, in many different
ways, by the people who have lived there, and who live there today. In particular, the significance of
Tsodilo as the last bastion of recognised Khoesan land rights was ignored. The documents prepared
by the National Museum and UNESCO instead focused more on the tangible heritage of Tsodilo in the
archaeological record and paintings, and their contribution to scientific studies.
The World Heritage Nomination dossier prepared by the National Museum outlines the
significance of Tsodilo in terms of its artistic, archaeological, cultural and natural heritage, its living
traditions and research potential. Mention is made of the Khoesan and Hambukushu communities
who live in Tsodilo, although the only reference implying a particular sense of belonging between
Khoesan and the Hills is a quote from a Hambukushu resident of a village some distance from the
Hills: “We were told that the first people at Tsodilo were the!Kung [Juc’hoansi]. We found them here
and settled amongst them peacefully”.6 However, the dossier is then silent on the significance of
this acknowledgement or the stories that it could provoke. Moreover, the significance of Tsodilo’s
cultural history is framed not in its importance to its residents but its importance to research and
the wider world. The only reference to ‘Indigenous peoples’ is in their value to external researchers,
stating that: “For the ethnologist, Tsodilo is an important data bank for the study of Indigenous
peoples who continue to inhabit the site”.7
That the dossier does not touch upon the significance of Tsodilo to Khoesan as the Indigenous
peoples of Botswana was to be expected. Prepared by a government department, it followed the
5
6
7
Interview by author, 1995.
Department of National Museum, Monuments and Art Gallery 2000, p. 9.
Ibid., p. 12.
126
The Rhino Panel, one of 4,500 rock art paintings at Tsodilo. Photo: Joachim Huber (CC BY-SA 2.0)
official practices of not identifying Khoesan as Indigenous peoples or in any way as a distinct ethnic
minority. Although not completely ignored, the choice not to give prominence to the intangible
heritage of the Hills and their relevance to the identities and customs of those living there today
could also be explained by the Government of Botswana’s caution in giving any prominence to
particular ethnic identities. This has prevailed despite the argument of at least one senior staff
member at the Museum that the living cultural significance of Tsodilo should be given greater
prominence in how it was managed by the Museum.8
Less explainable by the national policy context is the approach taken by the ICOMOS
evaluation team following their visit to the site in January 2001. ICOMOS agreed that Tsodilo
should be inscribed on the World Heritage List under cultural criterion (vi), alongside cultural criteria
(i) and (iii). Criterion (vi) refers to sites directly or tangibly associated with events or living traditions,
with ideas, or with beliefs, with artistic and literary works of outstanding universal significance.
The report’s justification for criterion (vi) was that: “The Tsodilo outcrops have immense symbolic
and religious significance for the human communities who continue to survive in this hostile
environment.”9 The evaluation report also notes, appropriately, that Tsodilo should be considered
as an “associative cultural landscape” with “powerful religious, artistic, and cultural associations
8
9
Segadika 2006.
ICOMOS 2001, p. 65.
127
of the natural element” and an “organically evolved landscape” which retains “an active social
role in contemporary society closely associated with the traditional way of life and in which the
evolutionary process is still in progress”.10
Despite its recognition of the continuing cultural significance of Tsodilo to the ‘human
communities’ who live there, the report makes two fundamental errors. Firstly, it fails to recognise
the Indigenous identity of the Juc’hoansi inhabitants. Secondly, it presents the people of Tsodilo
(both Indigenous and non-Indigenous) as people whose significance is in terms of their interest to
the outside world, as markers of humankind’s evolutionary progress. This representation is not only
ahistorical (ignoring the dispossession – and resistance to it – which are significant elements of the
story that Tsodilo tells) but it also ignores the present by defining Tsodilo’s inhabitants as people
of the past, whose defining context is evolutionary rather than socio-economic or political. The
cultural importance of Tsodilo today is interpreted narrowly through its spiritual significance and the
archaeological and artistic record left by previous inhabitants. It places little emphasis on the wider
values and meanings attached to Tsodilo by its residents and the relationship between these and
the current socio-economic contexts in which they live. Rather than acknowledging Tsodilo as a
landscape derived from, and protected by, its intimate relationship with its people, it ascribes “three
basic long-term facts [that] contribute to Tsodilo’s outstanding state of preservation: its remoteness,
its low population density, and the high degree of resistance to erosion of its quartzitic rock.”11
In sum, ICOMOS and the World Heritage Committee uncritically accepted and perpetuated the
official narrative of Tsodilo and its peoples in the ascension of Tsodilo to World Heritage status.
They failed to adequately recognise that Indigenous people live at Tsodilo, and the significance of
the Hills to their heritage, identity and their status today as a marginalised and stigmatised minority.
They failed to take into account how this status disables their ability to engage as equals in the
changes associated with Tsodilo becoming a World Heritage site. They missed the opportunity to
allow the story to be told of Tsodilo’s significance through the eyes of those that live there – both
Indigenous and non-Indigenous. They also failed to make any recommendations for particular
measures that should be put in place to reverse exclusionary processes or to ensure the equal
participation of Tsodilo’s Indigenous residents in its representation to the outside world and in
enjoying the benefits of heightened interest in the Hills.
Conclusion: lessons learnt from Tsodilo
The marginal position that the Juc’hoansi residents of Tsodilo occupy is characteristic of Indigenous
peoples worldwide. The particular experiences evident from Tsodilo are similarly likely to be
reflected in other contexts where decisions are made on World Heritage status, implying changes
in land use, ownership and interpretation of landscapes belonging to Indigenous peoples. These
include:
10 Ibid.
11 Ibid., p. 63.
128
• The likelihood that Indigenous peoples will not participate equally as decision makers,
either with non-Indigenous populations who also have an interest in the landscape, or with
national bodies involved in the process. Moreover, the risk is high that such changes will
entrench their marginal position;
• The likelihood, particularly in Africa, that the particular situations of Indigenous peoples are
not recognised or taken into account in the country-led processes that lead up to the
nomination of the site for World Heritage status;
• Lack of recognition of the particular intangible heritage and meanings that the landscape
– both historical, spiritual and cultural – has for its Indigenous residents;
• The opportunity that the explicit recognition of a cultural landscape may help overcome the
marginalisation and voicelessness of Indigenous peoples and could allow them to take
greater control of the landscape itself and how it is interpreted to the outside world.
In short, the challenge to UNESCO is how to manage a process of recognising the global value of
a landscape which has belonged to Indigenous people for centuries in a manner that contributes to,
rather than erodes, the recognition of that landscape belonging primarily to its inhabitants.
Meeting this challenge involves recognising and proactively managing both the risks and
opportunities that are created by the ascension of a site to World Heritage status. Firstly, it should be
recognised that this takes place in an historical context of dispossession and disenfranchisement.
It also often takes place in national policy contexts of universal ‘equality’ which do not recognise
the specificity, or even existence, of Indigenous peoples. This places an obligation on the World
Heritage Committee not simply to follow dominant national representations and procedures
in the nomination of potential World Heritage sites but to proactively ensure that it addresses
inadequacies that may exist in these. Such measures could include:
– Ensuring that, where Indigenous peoples are associated with a potential World Heritage
site, this is explicitly recognised in any documentation produced by UNESCO or the World
Heritage Committee in the process towards a decision on World Heritage status;
– Making clear the expectation of UNESCO that the standards of the UN Declaration on the
Rights of Indigenous Peoples, particularly on Free, Prior and Informed Consent, are
followed in steps leading to the nomination of sites for World Heritage status, and in the
implementation of management plans that follow. This will include putting in place
safeguards that pay particular attention to the full participation of Indigenous peoples, and
avoiding the assumption that providing equal opportunities for participation will automatically
imply equal participation in reality;
– Encouraging the full recognition of the land and resource rights of Indigenous peoples in
World Heritage sites, rather than as secondary rights on land under government
custodianship;
– Encouraging particular measures to be put in place to ensure the meaningful participation
of Indigenous residents in the management of World Heritage sites, rather than in merely
consultative or advisory functions;
129
– Ensuring that the description of cultural landscapes of Indigenous peoples in documentation
by UNESCO takes into account the full scope of factors contributing to the cultural and
historical importance of the site, from the perspectives of Indigenous peoples themselves.
UNESCO could provide assistance to facilitate such consultation and documentation.
The role of UNESCO in promoting recognition of the universal value of landscapes which may have
had a long association with Indigenous peoples is an important one. The case of Tsodilo emphasises
that UNESCO’s neglect lies not so much in directly marginalising Indigenous populations but in
uncritically giving assent to nationally-led and local processes that do not recognise the specificity
of Indigenous residents. They thus fail to either provide important safeguards against further
marginalisation or to take advantage of opportunities provided by the changes associated with
World Heritage status to reverse this marginalisation. Although the management of World Heritage
sites will, rightly, remain a national mandate, UNESCO’s involvement demands that it plays a more
proactive role in ensuring a more central role for Indigenous peoples.

References
Balsan, F. 1953. Capricorn Road. London, Arco Publishers.
Campbell, A., Robbins, L. and Taylor, M. (eds). 2010. Tsodilo Hills: Copper Bracelet of the Kalahari. Chicago, University
of Michigan Press.
Department of National Museums, Monuments and Art Gallery. 1994. Tsodilo Hills Management Plan, Scheme for
Implementation.
Department of National Museums, Monuments and Art Gallery. 2000. Tsodilo, Mountain of the Gods: World Heritage
Nomination Dossier, 31 May 2000.
ICOMOS. 2001. Evaluations of Cultural Properties Prepared by the International Council on Monuments and Sites
(ICOMOS) 2001. UNESCO Doc. WHC-01/CONF.208/INF.11 Rev.
Puskar, D. 2000. Impact assessment of the Management of Tsodilo Hills national Monument on the local Zhu and
Hambukushu communities. Unpublished paper produced for the School for International Training.
Segadika, P. 2006. Managing Intangible Heritage at Tsodilo. Museum International, Vol. 58, No. 1-2, pp. 31-40.
Van der Post, L. 1958. Lost World of the Kalahari. London, Hogarth Press.
130
131
Kahuzi-Biega National Park:
World Heritage Site versus the Indigenous Twa
Roger Muchuba Buhereko
“We have preserved these forests for thousands of years… It is because of our conservation
methods that there are now several UNESCO World Heritage sites in the DRC.”
Statement of Pygmy representatives from the DRC at the
UN Permanent Forum on Indigenous Issues, 20041
Introduction
T
he Kahuzi-Biega National Park (KBNP) is situated in the eastern part of the Democratic
Republic of Congo (DRC), not far from Lake Kivu and the Rwandan border, and covers an area
of 600,000 ha in South Kivu, North Kivu and Maniema provinces. It is divided into two sections: a
smaller highland area in the east (60,000 ha) and a much larger lowland area to the west, linked
1
AAPDMAC et al. 2004 (unofficial translation).
Left: Twa in the Chombo community on the outskirts of Kahuzi-Biega National Park. The Twa at Chombo were evicted
from Kahuzi-Biega and now have even stopped collecting forest products from the Park for fear of the Park guards .
Photo: Dorothy Jackson
132
by a narrow environmental corridor. The eastern highland section is dominated by two spectacular
extinct volcanoes, Kahuzi and Biega. It is the original section of the Park and, in biogeographical
terms, its endemic centre. The low altitude section in the west is a later extension.
The Park consists largely of dense primary tropical forest, including species of bamboo which
form the preferred food of the gorillas. It is extremely rich in biodiversity and home to an abundant
and varied fauna, including mammals, birds, reptiles, amphibians, chimpanzees, gorilla, buffalo
and many other animals. Between an altitude of 2,100 and 2,400 m above sea-level, it is inhabited
by one of the last populations of eastern lowland gorillas in the Democratic Republic of Congo,
numbering just 250 individuals or thereabouts.2
In addition to the flora and fauna, these spaces used to be home to around 40,000 indigenous
people known as Twa, traditional hunter/gatherers whose existence alternated between periods spent
moving from camp to camp in the Kahuzi-Biega forest and periods spent living near Bantu villages.
The Twa from Kahuzi-Biega believe that they form an integral part of the forest, which they perceive
as their source of security and life. They have an intimate knowledge of the forest, and of the plants and
animals living within it. Their practices and their way of life, their culture and their spirituality all revolved
around it. Their traditional relations with farmers from other ethnic groups used to be based on bartering
honey and medicinal substances for agricultural products, salt, iron tools and other goods. They would
use the forest resources to treat their illnesses. Their ritual activities and religious rites, such as the
initiation of boys, would take place in the forest, with which they had spiritual, cultural and material ties.3
Creation of the Park
The history of the Park began in 1937, when the Mount Kahuzi Zoological and Forest Reserve was
created by Decree No. 81/AGRI of the Belgian colonial administration. The reserve covered an
area of 75,000 ha and was regulated by the 1908 Colonial Charter and, more specifically, by a 1947
order and a 1949 decree. It formed part of the state domain and was managed by the Kivu National
Committee. The establishment of the reserve had little effect on the Twa, who did not even know
about its existence because they had not been informed or consulted about its establishment.4
They continued to live inside the reserve and kept hunting and gathering within its boundaries.5
Their rights to do so were, in fact, to some extent protected, as the reserve was sous reserve de
droits indigènes according to a 1951 decree.6
This changed on 30 November 1970, when the reserve was reduced to 60,000 ha and gazetted
as Kahuzi-Biega National Park by order of the President of the now independent Republic.7 The
2
3
4
5
6
7
UNESCO 2012.
See Mutimanwa 2001, p. 90 ff.; Barume 2000, pp. 80-81.
Mutimanwa 2001, p. 94 (Testimony by Pilipili, Twa tracker in the KBNP).
Barume 2000, pp. 69-70; Mutimanwa 2001, p. 90 ff.
Barume 2000, pp. 68-69, 74.
Ordonnance-loi No. 70/316. Of the 75,000 ha of the Forest Reserve, 15,000 ha were distributed among 16 wealthy
farmers (Mutimanwa 2001, p. 93).
KAHUZI-BIEGA NATIONAL PARK: WORLD HERITAGE SITE VERSUS THE INDIGENOUS TWA
133
Map 1: Kahuzi-Biega National Park
main objective of the creation of the National Park was to protect the habitat and population of
the endangered eastern lowland gorilla. The establishment of the National Park was, in part, the
result of the lobbying efforts of international conservation organisations, including notably, the
International Union for the Conservation of Nature (IUCN).8 The local inhabitants of the area,
including the indigenous Twa, were not consulted when the National Park was created.9 The
change in designation meant that human habitation, as well as hunting and gathering, was now
prohibited within the boundaries of the Park.10 An order dated 22 July 1975 extended the National
Park into the lowlands to the west, increasing its area from 60,000 to 600,000 ha.11 The lands of
the local communities and indigenous peoples who lived in these lowland areas in proximity to the
Park thus became annexed to the Park.
8
In 1966, the 9th General Assembly of IUCN (later renamed the ‘World Conservation Congress’) recommended “that
the Congo Government should undertake without delay the establishment of a National Park in the Kahuzi-Biega
region and the administrative measures necessary to ensure the immediate strengthening of protection…” (Res. 15).
The recommendation was reiterated by the 10th General Assembly of IUCN in 1969 (Res. 6).
9 IUCN and UNEP-WCMC 2011, p. 4; Mutimanwa 2001.
10 Barume 2000, p. 70.
11 Ordonnance-loi No. 75/238.
134
The expulsion of the Twa from their forests had already begun before the establishment of the
National Park, at the end of the 1960s, and was conducted by staff from the Congolese Institute
for Nature Conservation (ICCN) with the support of the armed forces. Starting around 1967, the
Twa who were living in what was the Kahuzi-Biega Reserve were forced out of the area on the
orders of the provincial authorities (along with some Shi and Rwandese Tutsi refugees).12 Although
the evictions were carried out in the most brutal manner, they met little resistance from the Twa
because they greatly feared coercive measures.13 A Twa woman, a widow with five children,
described her eviction as follows:
“We did not know they were coming. It was early in the morning. I heard people around my
house. I looked through the door and saw people in uniforms with guns. Then suddenly one
of them forced the door of our house and started shouting that we had to leave immediately
because the park is not our land. I first did not understand what he was talking about
because all my ancestors have lived on these lands. They were so violent that I left with
my children.” 14
The Park authorities completed the evictions of the Twa from the highland areas of the Park in
1975. Twa inhabiting the lowland areas annexed to the Park in 1975 were affected by eviction
pressures into the 1980s. All in all, around 580 Twa families and up to 6,000 individuals were
thrown off lands on which the Twa had lived since time immemorial.15 Today almost no Twa inhabit
the Park, living instead in areas around the Park’s borders.
Nothing was done to help the Twa evicted from the KBNP to find new land on which to settle.
Each family or group was abandoned to its fate and they dispersed into various villages in Kalehe
territory in South Kivu and Walikale territory in North Kivu.16 The African Commission on Human
and Peoples’ Rights, the African Union body in charge of monitoring the implementation of the
African Charter on Human and Peoples’ Rights, has noted:
“Land should have been given in compensation to the Batwa, but this did not happen.
Now the Batwa are forbidden to hunt in the park, and forbidden to collect park products.
They have no food resources or medicinal plants, and the forest is no longer their place of
worship. The Batwa have been culturally and psychologically shattered by the loss of their
forests. The local authorities do not allow the Batwa to return to the forest of Kahuzi-Biega,
as they claim they pose a high risk to the ecosystem. However, this is only a pretext, as
traditionally the Batwa have never hunted gorillas, nor do they destroy the forest by cutting
down trees…
12 Barume 2000, p. 74, 80 ff. Barume notes that, prior to the establishment of the National Park, the expulsion was illegal
under domestic law as the reserve was still sous reserve de droits indigenes.
13 Muley, Sinafasi & Pacifique 2003, p. 17.
14 Cited in Barume 2000, p. 80.
15 Figures from the Twa NGO PIDP-Kivu and investigations by A. Barume. See Barume 2000, p. 80.
16 Ibid.
135
The entrance to Kahuzi-Biega National Park. Photo: Liz Williamson
The Batwa who were driven out of the Kahuzi – Biega forests are now extremely poor, even
destitute. Most have no property, and it is very difficult for them to obtain their basic needs.
To survive, some have learned from other non-Batwa how to make charcoal from wood to
sell and this gives them around $10 every fortnight. Others who have plots of land try to
cultivate them as best they can with potato and vegetables but, given that they are not used
to farming, and that the rains have been extremely irregular in recent times, their situation
remains one of extreme poverty. The Batwa in the north of the Kahuzi-Biega Park have
settled on plots of land but these lands, officially unoccupied, may be allocated to someone
else by the local authorities. The Batwa have no legal protection once neighbours from
other ethnic groups decide to take their land or drive them out of their villages.” 17
While the evictions were felt heavily by the Twa, other communities continued to live on their
lands.18 It was only the weak, those with no voice and no legal protection, namely the Twa, who
were evicted without any form of legal process. This is a serious form of discrimination that is
17 ACHPR 2003, p. 13.
18 For details, see Barume 2000, pp. 72-74.
136
inconsistent with the provisions of various international human rights treaties that the Democratic
Republic of Congo has ratified, in particular the International Convention on the Elimination of All Forms
of Racial Discrimination (ICERD).19 The forced removal of indigenous peoples from their traditional lands
is explicitly recognised as a serious violation of ICERD requiring immediate and urgent action.20
According to Congolese law, including the Constitution of 24 June 1967 which was in force
both at the time of creating the KBNP and at the time of its expansion, as well as the Law of 20 July
197321 and the Law of 22 February 1977,22 the expropriation of land for public use is conditional
upon fair compensation being paid to the victims. Those who are deprived of their property for a
compelling public interest reason must therefore obtain fair and prior compensation. The measures
to evict the indigenous peoples from the KBNP were thus in violation of all legislation in force in this
regard in the Democratic Republic of Congo.
It should be noted that no consultation or process for obtaining the consent of the indigenous
peoples was implemented by either the Congolese government or its administrative departments
in the procedure for creating the Kahuzi-Biega National Park, nor when the boundaries of the Park
were extended in 1975. Furthermore, the Twa continue to be denied access to their resources and
have been denied any share of benefits from the Park. As noted, they have also not received the
compensation due to them under Congolese law. Although this occurred prior to DRC’s accession
to ICERD, the on-going and continued harm suffered by the Twa places the DRC in contravention
of its international obligations under that Convention.23 Moreover, Article 10 of the UN Declaration
on the Rights of Indigenous Peoples (UNDRIP), adopted in 2007 by the UN General Assembly and
endorsed by the DRC, explicitly forbids the forcible removal of indigenous peoples from their lands
or territories in the future, and Article 32(3) establishes an obligation on States to provide “effective
mechanisms for just and fair redress” where the lands and resources of indigenous peoples have
previously been developed without their consent.
19 The international human rights treaty monitoring bodies have repeatedly expressed concern about the discrimination
and marginalization of Pygmies, and the widespread violation of their rights, in the DRC. See, e.g. CERD 1996, para.
12 (“Grave concern is expressed at allegations of large-scale discrimination against the Pygmies (Batwa)”); HRC
2006, para. 26; or CESCR 2009, paras. 14, 17, 36. In 2007 CERD “note[d] with concern that the rights of the Pygmies
(Bambuti, Batwa and Bacwa) to own, exploit, control and use their lands, their resources and their communal territories
are not guaranteed and that concessions to the lands and territories of indigenous peoples are granted without prior
consultation. The Committee recommend[ed] that the State party should take urgent and adequate measures to
protect the rights of the Pygmies to land and: (a) make provision for the forest rights of indigenous peoples in domestic
legislation; (b) register the ancestral lands of the Pygmies in the land registry; (c) proclaim a new moratorium on forest
lands; (d) take the interests of the Pygmies and environmental conservation needs into account in matters of land use;
(e) provide domestic remedies in the event that the rights of indigenous peoples are violated…” (CERD 2007a, para.
18). Also see UNGA 2006, para. 134 (report of the independent expert on the situation of human rights in the DRC to
the UN General Assembly).
20 Committee on the Elimination of Racial Discrimination (CERD), Guidelines for the Early Warning and Urgent Action
Procedure (CERD 2007b, para. 12 (h)).
21 Loi No. 73-021 portant régime général des biens, régime foncier et immobilier et régime des sûretés (General regime
for real estate, land and guarantees). Modified and supplemented by Law No. 80-008 of 18 July 1980.
22 Loi No. 77-001 on expropriation for public use.
23 See, e.g., CERD 1997, General Recommendation No. 23: Indigenous Peoples, para. 5. Also see CAMV et al. 2006,
p. 15.
137
Inscription of the World Heritage site
Despite widespread knowledge of the forced relocation of the Park’s inhabitants, and explicit
acknowledgement of the relocations in the World Heritage nomination sent to UNESCO,24 the
World Heritage Committee proceeded to declare the Kahuzi-Biega National Park a World Heritage
site in 1980 because of its importance as a habitat for rare and endangered species, in particular
the eastern gorilla.25 The Twa who were evicted from the Park but continued to live in neighbouring
villages were never consulted during the process of designating the Park a World Heritage site
and, indeed, they do not even remember such a process. Neither the State Party’s nomination
document nor the Advisory Body Evaluation by IUCN or the relevant Decision of the World Heritage
Committee contains any reference to the existence of the Twa.26
The suffering of the Twa, evicted from their property, was widely known and must have been
clear to resident UN institutions, including UNESCO, which had a regional office in Kinshasa at
the time. Corrective measures and reparation for all the harm suffered by the Twa should have
been called for by the World Heritage Committee as a prior condition for inscribing the site on the
World Heritage List, particularly since UNESCO is a UN institution supposed to “further universal
respect for justice, for the rule of law and for the human rights and fundamental freedoms which
are affirmed for the peoples of the world”, according to its Constitution.27 At the time the Park was
being considered for World Heritage status, both of the International Human Rights Covenants
as well as the International Convention on the Elimination of All Forms of Racial Discrimination
had already been ratified by the DRC which thus had obligations in this regard. The country was
not supposed to violate these international standards and yet, even now, with the adoption of the
UN Declaration on the Rights of Indigenous Peoples, UNESCO has not sought any clarifications
from the government with regard to the current situation and conflict between the indigenous
peoples and the Park.
The World Heritage Committee has for years been very concerned, and rightfully so,
about the occupation of the Park by armed militia, and in 1997 placed the site on the List of
World Heritage in Danger, where it has remained ever since. It has obliged the government
to use military force to safeguard the Park’s integrity and outstanding universal value,28 and
thus spare the site from being removed from the World Heritage List. This threat of withdrawal
of the UNESCO designation was taken very seriously by the Congolese government, and
this begs the question as to why UNESCO’s influence could not similarly be used to get the
24 IZCN 1979, p. 10: “When Kahuzi-Biega was given the status of a reserve, in 1960, and later of a national park, in 1970,
the local populations were forced to leave the territory…” (unofficial translation).
25 See IUCN 1980.
26 IZCN 1979; IUCN 1980; WHC 1980.
27 Constitution of the United Nations Educational, Scientific, and Cultural Organization, Art. I, para. 1.
28 See, e.g., World Heritage Committee Decision 30COM 7A.6 (2006).
138
Congolese government to respect the rights of the indigenous Twa who were evicted from the
area.29
In actual fact, these indigenous people are currently subject to the decisions of the World
Heritage Committee without being able to have any influence over them. Although the Committee
seeks “to enhance the role of communities in the implementation of the Convention”30 and although
it has examined KBNP annually since 1997, the Committee has never paid any attention to the
existence of the Twa and they are not mentioned in any of its decisions.31 The communities have little
information on the process although, according to the Operational Guidelines for the Implementation
of the World Heritage Convention, their participation in the protection of the site is to be ensured.32
This lack of indigenous consultation and participation is becoming all the more conspicuous now that
the Congolese authorities are just beginning to recognise the existence of indigenous peoples and the
need for special measures to protect their interests and include them in decision-making processes.33
At the time the site was designated, however, conservation interests were placed over and
above indigenous rights. The designation of the KBNP as a World Heritage site has led to an
entrenched position on the part of the Congolese government and the ICCN, both of which firmly
believe that they acted correctly by evicting the indigenous families, despite being in violation of
both Congolese and international law.
Exclusion of the Twa from management
Following World Heritage designation, the Congolese authorities strengthened their protection
measures with regard to the Park, and so the conservative and coercive 1969 Law on Nature
Conservation, Ordonnance-loi No. 69-041 of 22 August 1969, was implemented to the letter.
According to this law, no-one has the right to remove either non-timber forest products or dead wood
from nature reserves, and the park police in KBNP are always sufficiently armed to deal not only
with poachers but also with the indigenous communities, who are frequently punished for poaching,
without any evidence.34 The Congolese Institute for Nature Conservation, the government authority
29 According to the current (2013) Operational Guidelines for the Implementation of the World Heritage Convention, para.
192, a property can only be deleted from the World Heritage List when it has “deteriorated to the extent that it has lost
those characteristics which determined its inclusion in the World Heritage List”. As described above, the presence and
culture of the Twa is not considered by the World Heritage Committee as part of those characteristics (i.e. the site’s
‘outstanding universal value’). However, the legitimacy of this assessment – if not of the World Heritage designation
per se – is highly questionable given the blatant exclusion of the Twa from all decision-making processes regarding the
World Heritage site.
30 Fifth Strategic Objective of the World Heritage Committee, see the Operational Guidelines (2013), para. 26.
31 This is also true for the “Statement of Outstanding Universal Value” adopted by the Committee in 2012 by Decision
36COM 8E.
32 Operational Guidelines (2013), paras. 12, 119.
33 See, for instance, Decree No. 09/40 of 26/11/2009 on the creation, composition and organisation of the structure for
implementing the process for reducing emissions from deforestation and forest degradation (‘REDD’), Art. 5; or the
efforts to prepare a national development program for the indigenous peoples of the DRC (see World Bank 2009).
34 See, for instance, Barume 2000, p. 82 ff.
139
Settlement of Twa evicted from Kahuzi-Biega National Park, Chombo, DRC. Photo: Dorothy Jackson
in charge of the management of protected areas in the DRC, is prepared to go to great lengths to
safeguard the integrity of a World Heritage site from which it hopes to obtain a great deal of funding
and income from tourism.
Prior to the 1994 war in Rwanda, which destabilised the east of the DRC, and the successive
wars, the mountain gorillas were a great attraction in this Park and tourism was booming.35
However, none of the income found its way into the hands of the indigenous Twa, as the ICCN has
almost absolute control over the Park and its income, and access and benefit-sharing mechanisms
do not exist. The Twa are still landless and their situation continues to be one of extreme poverty.
A few mini-projects are being implemented in villages close to the Park; however, they have no
real impact on the lives of the Twa. The few schools that have been opened are attended mainly
by Bantu children given that primary school is not free in the DRC and Twa families are unable
to pay. An indigenous Twa chief evicted from the Park whom the author recently talked to was
convinced that if the Twa were to receive aid from countries supporting the World Heritage site then
the primary aim of this would be to keep them in poverty as the donors were more interested in the
gorillas than in human beings.36
35 See UNESCO 2005, p. 117.
36 Interviews conducted in January 2012 by the author.
140
The management plans for the KBNP have always been completed by the ICCN without
any Twa participation, including the current plan, the General Management Plan 2009-2019.
Just a few NGOs that are somewhat supportive of the indigenous people were informed and
participated in the discussions. The current plan does at least acknowledge that the Twa
were removed from the Park at the time of its creation although they had coexisted with the
forest for many generations and depend on it for hunting, fishing and gathering. It notes that
they now live on the edges of the Park under very poor conditions and rely on hunting to
supplement their livelihoods. However, the Twa continue to be treated as a major threat to the
site in the management plan, which laments that they have not given up hunting and states
that “the current method of illegal exploitation of the Park’s resources by the Batwa represents
a big risk for the future of the Park”.37 One positive aspect of the management plan is that
the Twa (“Pygmées”) are listed as one of the (many) stakeholder groups to be involved in
programming workshops.38 The plan also recognises the existence of Twa cultural sites inside
the Park, and indicates that the communities will be able to access their cultural sites in the
future.39 Such recognition of cultural sites in the document is proof that the indigenous Twa
communities have indeed been deprived of access to their sacred sites, something that is to
their detriment. The management plan is unclear, however, as to when or how the Twa will
concretely be able to enjoy such recognition.
In a conversation with a conservation worker, this latter felt that the communities understood
nothing about the heritage site as their level of comprehension was too low, thus preventing them
from being able to participate in this process. If this is the case, then why not provide them with
information and capacity-building sessions?
When you visit the KBNP offices in Muhumba, the smartest district of Bukavu, the words
“World Heritage Site” are inscribed on a board outside the building, a clear sign of the prestige
that the UNESCO designation brings to the site and its administration. This position is in contrast
to the situation of the indigenous Twa, who are abandoned and whose only privilege with regard
to this world heritage is the possibility of being recruited as one of the few park guards on a salary
of between US$50 and US$100 per month. There are no Twa in senior positions in the World
Heritage site management team, which constitutes serious discrimination in employment terms
and, in the absence of an educational policy for the indigenous Twa, means it will be difficult for
them to play a substantial role in implementing the KBNP Management Plan in the future, or for an
indigenous Twa to hold a management and decision-making position within the KBNP.
It should be noted that, in previous years, as now, various programmes and projects have
been developed, the most visible being one financed by German development cooperation
(GTZ/GIZ) and the WWF, the aim of which is to promote so-called participatory conservation
in the Park, so-called because an evaluation of these projects and programmes to date shows
little progress in terms of Twa rights. The KBNP General Management Plan 2009-2019 seems
37 ICCN 2009, pp. 18-19, 22-23 (own translation).
38 Ibid., p. 109 (Annex 4).
39 Ibid., p. 29.
141
to recognise good principles; these are thus far no more than theories, however, and will
need to be implemented in practice if we are to see any positive change. The donors and the
government will also need to find out how provisions such as Article 8j of the Convention on
Biological Diversity (CBD)40 and the Nagoya Protocol on Access and Benefit-sharing41 are being
implemented in Kahuzi-Biega National Park, as there is no access and benefit-sharing initiative
in place for the Twa.
As regards the profits from Park tourism, UNESCO has analysed the distribution of profits
generated each year by tourists visiting the gorillas in the DRC. Local profits arising from the
US$ 20.6 million each year only amount to US$ 0.7 million, or around 3.4% of the total.42
Moreover, as Plumptre et al. have demonstrated, the benefits drawn from the conservation
projects by indigenous peoples are less than those of others. While 7% of the population as
a whole recollect having been able to benefit a little from the profits coming from tourism,
not one Twa in the areas surrounding the Virunga and Kahuzi-Biega National Parks has ever
experienced such a thing. The presence of these Parks has only negative consequences for
them, such as restricted access, aggression during the harvesting of forest products, theft
of harvests, and clashes with park guards.43 The impoverishment of the indigenous peoples
in the DRC through the establishment of national parks is thus evident, and the case of the
KBNP is no exception.
Twa responses to their exclusion
It is abundantly clear that the indigenous people of the KBNP have suffered significant harm as they
are now landless, unable to access their property, i.e. their lands and their forest, and unable to use
or transmit to their children their traditional knowledge. The treatment they have been subjected
to is not only discriminatory but also inhuman and degrading. Their various complaints calling for
compensation to be paid by amicable arrangement have fallen on deaf ears and so they are now
demanding justice through the Congolese courts, with a case aimed at obtaining compensation
for the damage suffered and, indeed, still being suffered, as the extremely difficult living conditions
40 The CBD was ratified by the DRC in 1994. Art. 8 is on “In-situ conservation” and states in part: “Each Contracting Party
shall, as far as possible and as appropriate: [...] (j) Subject to its national legislation, respect, preserve and maintain
knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for
the conservation and sustainable use of biological diversity and promote their wider application with the approval and
involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the
benefits arising from the utilization of such knowledge, innovations and practices…”
41 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their
Utilization to the Convention on Biological Diversity. The Protocol was adopted by the Conference of Parties to the
Convention on Biological Diversity in October 2010 and will enter into force 90 days after the date of deposit of the
fiftieth instrument of ratification. The DRC has signed, but not ratified the Protocol (as of 14 January 2014).
42 UNESCO 2005, p. 132.
43 Plumptre et al. 2004, pp. 82 ff. Referenced in Schmidt-Soltau 2007, p. 23.
142
these people are experiencing make them a people “heading towards extinction”.44 The Twa are
also demanding a return to their forest, as they have no land of their own on which to practise their
way of life.45
The UN and state institutions are doing nothing for these people, despite this historic and
flagrant injustice having been denounced for many years by national and international human
rights NGOs, in writing and by other means. Failing any adequate response, and with the support
of an NGO, the ERND Institute (Environment, Natural Resources and Development Institute),
66 of the Twa who were evicted from the KBNP have recently initiated legal action against the
Congolese government and ICCN, seeking restitution of their ancestral lands, compensation
for the harm suffered and guaranteed access to basic social services in the areas of education,
health, employment and housing. In the first instance, the case was heard in the Kavumu
District Court, in a village close to the Park, but this court ruled that the matter was outside its
competence, without looking into the merits of the case.46 The Bukavu Court of Appeal upheld
this decision and again found the matter outside of its competence, ruling it a constitutional
matter.47 The case has now been submitted to the clerk of the Supreme Court in December
2013, where it awaits a hearing.48
The Democratic Republic of Congo has made a number of regional and global international
commitments, including, for example, ratifying the African Charter on Human and Peoples’ Rights.
While the state is obliged to implement this important text, no results have as yet been forthcoming
with regard to the situation of indigenous peoples in general and the Twa of the KBNP in particular.49
The UN Declaration on the Rights of Indigenous Peoples, endorsed by the DRC at the time of its
adoption in 2007, has as yet also not led to the government adopting concrete measures aimed at
implementing its provisions.
ILO Convention 169 (Indigenous and Tribal Peoples Convention, 1989) is not even under
consideration for ratification by the Congolese government. There are, however, internal discussions
taking place with regard to the possibility of developing specific local texts on indigenous peoples’
rights, prioritising the reality of each province with the adoption of local laws. These discussions
are still informal, however, between locally-elected representatives and non-governmental
organisations.50
The World Bank’s Strategic Framework for the Preparation of a Pygmy Development Program,51
proposed for adoption by the Congolese government, tries to establish a general framework for
resolving indigenous issues; however a global solution will only come about through a jointly agreed
44 Barume 2000. Barume quotes a Twa man from Bishuleshule/Kalehe as follows: “…since we were expelled from our
lands, death is following us. We bury people nearly every day. The village is becoming empty. We are heading towards
extinction. Now all the old people have died. Our culture is dying too…” (Barume 2000, p. 87).
45 Interviews conducted in January 2012 by the author.
46 Case No. RC 4058, Tribunal de Grande Instance of Uvira.
47 Case No. RCA 4570, Cour d’appel of Bukavu.
48 Case No. RC 3817.
49 See ACHPR 2003.
50 ERND Institute 2009.
51 World Bank 2009.
143
framework taking into account the effects caused by the implementation of UNESCO processes
related to World Heritage.
Conclusion
In terms of a conclusion and recommendations, it must be emphasised that the case of the
KBNP and the indigenous Twa is an injustice that first and foremost has to be recognised,
and then compensated, as amicable processes have not resulted in a solution. It is important
that the Congolese authorities do not wait until convicted in this regard, particularly as the UN
Declaration on the Rights of Indigenous Peoples anticipates that mechanisms be put in place to
resolve conflicts involving indigenous peoples, and that a rapid solution is found.52
The case before the Congolese courts remains the only hope for the Twa who were evicted
from Kahuzi-Biega National Park, as UNESCO seems oblivious to the victims of these inhuman
acts, the consequences of which continue to be felt within the community, scattered as it is in
the villages surrounding the Park and receiving no assistance. To cap it all, even access to
justice remains a great challenge for the indigenous Twa. Without prejudice as to the outcome
of this historic process for the Twa, the length of the proceedings and the threats against the
activists behind the case - particularly indigenous leaders, the lawyers’ collective and the ERND
Institute - would seem to suggest that the case is being taken seriously. The independence of
the Congolese justice system remains to be seen, however, in a young democracy that has just
emerged from war. If, impossibly, the Twa do not win this domestic case then there is still the
possibility of taking it to the international level, particularly the African Commission on Human
and Peoples’ Rights and the UN Human Rights Committee.53 A wider demand is to also see the
World Heritage Committee take this case on board and urge the government to respond to the
indigenous concerns and put in place reparation and compensation measures in line with its
international commitments.
After more than 30 years of World Heritage status, it is important that UNESCO finally conduct
a serious evaluation of the way in which indigenous peoples are continuing to suffer serious harm
at its site; to do nothing will be considered as being complicit with the Congolese government and
ICCN, who are responsible for this situation. Those of us who believe in UNESCO’s credibility
want to see it committed to resolving this conflict, and to see justice done for the Twa victims of the
Kahuzi-Biega National Park. 
52 See UNDRIP, Arts. 8(2), 11(2), 32(3) and 40.
53 ERND Institute 2009.
144
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3
146
147
Bwindi Impenetrable National Park:
The Case of the Batwa
Christopher Kidd 1
The Batwa of Uganda
H
istorically, the Batwa were forest-dwelling hunter-gatherers, maintaining livelihoods within the high
altitude forests around Lake Kivu and Lake Edward in the Great Lakes Region of Central and East
Africa. The Batwa are widely regarded by their neighbours, and historians, as the first inhabitants of the
region, who were later joined by incoming farmers and pastoralists approximately 1,000 years ago.2
Today, the Batwa still live in Rwanda, Burundi, Uganda and eastern Democratic Republic of Congo.
In each of these countries, they exist as a minority ethnic group living amongst the largely Bahutu and
Batutsi populations. In Uganda, their dominant neighbours are the Bafumbira and Bakiga peoples.
While accurate figures are difficult to determine, as estimates vary between different sources, it
is believed that approximately 6,700 Batwa now live within the present state boundaries of Uganda,
1
2
The findings of this chapter are based on a review of indigenous peoples’ participation in protected area management
conducted by Forest Peoples Programme in 2008. See Kidd and Zaninka 2008.
Taylor, Robertshaw and Marchant 2000.
Left: Bwindi Impenetrable National Park. Photo: Teseum (CC BY-NC 2.0)
148
with approximately half living in the south-west region of Uganda.3 The Batwa in this region are
former inhabitants of the Bwindi, Mgahinga and Echuya forests, where they had lived since time
immemorial in coexistence with the environment and in full reliance on the forest for their physical,
economic, spiritual and social sustenance. Recently, however, they have suffered evictions and
exclusions from their forests, primarily for the creation of protected areas that were established
without their participation or their free, prior and informed consent.
As a result of their exclusion from their ancestral forests and the subsequent loss of their forestbased livelihoods, the majority of Ugandan Batwa suffer severe isolation, discrimination and sociopolitical exclusion. The Batwa’s customary rights to land have not been recognized in Uganda and
they have received little or no compensation for their losses, resulting in a situation where almost
half of the Batwa remain landless and virtually all live in absolute poverty. Almost half of the Batwa
continue to squat on other people’s land whilst working for their non-Batwa masters in bonded
labour agreements. Those who live on land that has been donated by charities still continue to
suffer poorer levels of healthcare, education and employment than neighbouring ethnic groups.
Today, the Batwa’s political situation, on the margins of Ugandan society, is analogous to their
physical existence in settlements on the edges of their ancestral forests.
A history of protection
The British colonial administration first established protected areas within the Batwa’s forests in
the 1930s, measures which probably served to protect the forests from complete destruction by
the incoming cultivators and pastoralists who were eager to utilise the fertile lands. Nonetheless,
despite this infringement of their land rights, the Batwa continued to consider the forests as theirs,
to worship their ancestors there, and to use the forest to derive their livelihood and practise their
culture. The chief objective of the conservation measures was the protection and preservation
of the Mountain Gorilla and it seems that the initial colonial measures were contradicted by the
conservation measures that were to follow. In 1930, one administrator’s wife wrote that:
“The danger to gorilla to be apprehended from local Africans is very little… a Swedish
expedition offered the Kigezi mountain pygmies what to them was wealth to enlist their
services as hunters for a museum specimen. They met with a blank refusal. The flesh,
moreover, is considered by them as ‘an abomination.’ To suggest eating it is an insult.
As regards the pelt, even the professional tanners will not touch it. They ‘would as soon
consent to flay a brother’s skin’.” 4
As such, the Batwa were not seen as a threat and their way of life went largely unhindered. Indeed,
early colonial administrators even championed the Batwa’s rights to live in these forests and
demanded legal protection to secure the Batwa’s continued well-being:
3
4
Uganda Bureau of Statistics 2002.
Phillipps 1930.
BWINDI IMPENETRABLE NATIONAL PARK: THE CASE OF THE BATWA
149
Former Twa hunter demonstrating use of spear near Echuya forest, Uganda. Photo: Dorothy Jackson
“The killing of animals is necessary for [the Batwa’s] existence… The Batwa cannot be
restricted in their habituation of the area nor can their hunting habits be interfered with.
Fortunately they do not hunt the gorilla nor molest it in any way nor eat its flesh. Under such
circumstances it will be necessary to modify the park regulations. Though maintaining the
usual restrictions on visitors from outside, suitable modifications will be necessary in order
to permit the Batwa to continue hunting.” 5
In 1964, Bwindi followed Mgahinga6 in becoming gazetted as an animal sanctuary. At the time, the
threats to the gorillas came from the great numbers of Batutsi and Bahutu who had entered the area
from northern Rwanda, and habitat destruction became the greatest danger to the gorillas.7 It is unclear
how these earlier changes in protection affected the Batwa but, in 1964, Forest and Game Acts were
introduced in Uganda which had serious effects on their access to their forest resources. Residing,
hunting and farming were made illegal inside the park, as was the use of hunting dogs or the possession
5
6
7
Hingston 1931, p. 417.
Mgahinga was originally gazetted as a Gorilla Sanctuary in 1930.
Dart 1960, pp. 330-331.
150
of hunting weapons. Around this time, between 50 and 100 Batwa families were evicted from Bwindi.8
Enforcement of these laws suffered during the post-colonial troubles which blighted Uganda, however,
as government legislation was ignored. When the National Resistance Movement came to power in
1986, the stability it brought Uganda opened the door to various conservation interests, which took
over the work that had stalled during the civil war period. As early as 1988, the Uganda National Parks
department (UNP) presented a report to the Ugandan Cabinet proposing Bwindi as a National Park and,
in 1989, the process began that led to the creation of Bwindi Impenetrable National Park (Bwindi) and
Mgahinga Gorilla National Park (Mgahinga).9 The establishment in 1991 of Bwindi and Mgahinga forests
as national parks resulted in the permanent eviction and exclusion of the Batwa from their homeland. At
this point in time, the previous infringement of their land rights was reinforced and their marginalisation
completed by the removal of their use and access rights to the forests. It should also be noted that, at
the very same time as these forests were being established as national parks, the Ugandan government
was preparing its nomination of Bwindi as a World Heritage site. In neither case did the mechanisms
employed to create Bwindi as a national park and a World Heritage site seek to include the Batwa’s
views, and the violation of their rights to their lands went unheard.
This path towards increasing levels of protection for these forests, and the corresponding
restrictions on access that such protection entailed, did not go unnoticed by the communities
surrounding these forests. In June 1990, a team comprising members of the UNP, Game Department
and World Wide Fund for Nature (WWF) carried out a public enquiry to provide recommendations
for the creation of a management plan for the proposed national park. The communities felt it vital
that nobody should lose any land as a result of Bwindi becoming a national park; that financial
benefits, particularly from employment, should accrue to the communities; that access should be
given for communities to collect forest resources, and that local communities should be involved
throughout the process.10 The injustice felt by the people affected by the proposed restrictions
led one community to ask: “Does the government care more about the gorillas than people?” and
further: “Tourists come from countries where they have killed their own animals. Why shouldn’t they
go to see animals in zoos instead of coming to Bwindi?”11 The Batwa’s views were neither sampled
nor represented anywhere in the public enquiry.
The creation of Bwindi as a national park in 1991 went ahead with the insistence of government
officials and global conservation groups and, with the stroke of a pen, the Batwa became squatters
on their own land. Initially, these groups’ conservation method was firmly based on the ‘Fortress
Conservation’ model. Communities were seen as being the cause of forest degradation and so the
best way to conserve the forest was to exclude them from any contact. The Batwa and other local
people were no longer allowed to enter BINP and attempts to collect water and firewood were repelled.
Despite this initial policy, the early 90s also saw Bwindi pilot a new form of conservation that
positioned communities as an important component of conservation management. Whilst these
new forms of conservation brought success to some local communities around Bwindi, the Batwa
8
9
10
11
IUCN 1994.
Hamilton, Baranga and Tindigarukayo 1990, p. 16.
Ibid., pp. 32-41.
Ibid., pp. 39-40.
151
were systematically excluded. Twenty years on since the creation of the national park, the Batwa
remain marginalised from the management of Bwindi, from any forms of benefit deriving from the
national park, and from the right to access and use the resources located inside the forests.
Batwa involvement in Bwindi Impenetrable National Park management
Social losses
At the time Bwindi was created, the Batwa – who were by far the people most heavily dependent
on the forest for their sustenance, livelihood and culture – were recognized as having been
particularly adversely affected, both socially, economically and culturally. The Global Environment
Facility (GEF) provided funding to Uganda to support the management of these national parks,
through the Mgahinga and Bwindi Impenetrable Forest Conservation Trust Fund, now known as
the Bwindi Mgahinga Conservation Trust, BMCT (the ‘Trust’). The 1995 Project Document for the
Conservation Trust states:
“When [Bwindi and Mgahinga] became Forest and Game Reserves in the 1930’s, with
human occupation and hunting formally banned, [the Batwa] began to shift out of the
shrinking forest area and began spending more time as share-croppers and labourers on
their neighbours’ farms. However, they still had access to many forest resources and the
forests continued to be economically and culturally important to them. The gazetting of the
areas as national parks has virtually eliminated access to these opportunities for all local
people, but the impact has been particularly harsh on the Batwa because they are landless
and economically and socially disadvantaged, and have few other resources or options.” 12
A comprehensive socio-economic assessment and consultation was not completed until 1996, after
the Trust had become fully operational. The resulting report recommended recognizing Batwa use
rights to certain resources in the parks and the right to access sacred sites, the allocation of forest
and farmland to evicted communities, capacity building, and educational, health and economic
assistance. However, these recommendations were not fully implemented and it required the
support of the Dutch government to provide funds for the Trust to acquire small parcels of land for
a small minority of Batwa. Whilst this was a helpful initiative, the amount of land bought for each
family was far below the recommended two acres per family and the land acquisition programme
closed down before land had been bought for all affected communities. Even with the support of
additional charity and church groups, around half of all Batwa are still landless. This places a large
number of Batwa at the mercy of neighbouring ethnic groups, who continue to discriminate against
them and who use the Batwa as farm labourers.
12 World Bank 1995.
152
Social benefits
Under the Wildlife Act, the UWA is obliged to allocate 20 percent of park entry fees paid by tourists
to local community initiatives through Community Protected Area Institutes (CPAIs). However,
virtually all projects funded by this revenue-sharing scheme are social infrastructure projects such
as roads, schools and health facilities. These projects rarely benefit marginalised communities
such as the Batwa. For example, Batwa children face particular hurdles in accessing and staying
in school, and these obstacles have not been addressed by government. Further, in Bwindi, park
entry fees are rather insignificant compared to revenues from gorilla tracking permits, which are
currently around US$450 per person and likely to rise. Since 2004, a US$5 levy fee has been
collected from gorilla tracking permits, in favour of community development. Additionally, a US$4
community levy is being ‘set aside’ for additional community developments. It is hoped that these
funds will help to target Batwa communities but, on the evidence so far, the Batwa’s claims to the
benefits of this scheme are being marginalized by other sections of the community.
In 2011, after several years of negotiations and hard work, the UWA, Kisoro District Local
Government and the Batwa’s own NGO, the United Organisation for Batwa Development in
Uganda, signed a memorandum of understanding to begin a joint tourism project in Mgahinga
Gorilla National Park. This new project offers tourists the chance to visit the national park with
Batwa guides and learn about the Batwa history and culture of the forest. This venture is a huge
step forward in relations between the Batwa and the protected area managers and it is hoped that
similar opportunities may open up in neighbouring Bwindi.
Customary use
In terms of national legislation, the Wildlife Statute (1996) allows local communities to access
forests for traditional uses provided such uses are compatible with sustainable development. The
Statute also recognises the historical rights of persons who used to reside inside conservation
areas. These provisions, however, have yet to be implemented to a degree that benefits the Batwa.
Since 1993, the Government of Uganda has authorised a Multiple Use Programme (MUP)
in Bwindi, through which neighbouring communities are permitted (under memoranda of
understanding) to access medicinal plants, basketry materials and certain other non-timber forest
products. This MUP is now operating in 12 of the 24 parishes bordering Bwindi and the Multiple
Use Zones (MUZs) now cover approximately 20 percent of the forest area of Bwindi.
While these have, to some extent, been positive developments for some local communities, they remain
flawed in their implementation and have provided few benefits for the Batwa. In practice, there has been no
sustainable extraction of the Batwa’s culturally-specific resources within Bwindi. Firstly, the Government of
Uganda continues to operate under a power-relationship approach, with government officials holding all the
knowledge, information and decision-making powers and communities having little understanding of their
rights and virtually no real say in either process or outcomes. As one report notes:
153
“Rather than entering into open-ended negotiations, with compromises made on both
sides, the quality of [the] process was limited by the willingness of park management to
concede (or even discuss) access to resources of any significant value.” 13
Another author regards the MUP as:
“...another form of state control over resources…with the protected area management
authority unwilling to trust resource users and subsequently to relinquish some of its
responsibilities and authority.” 14
Resource use thus continues to be treated as a privilege rather than a right, and this privilege is,
by most accounts, meagre at best.
Secondly, the small amount of resource use that does accrue to local communities is not adapted
to Batwa needs, and they are thus once again excluded and marginalised by the MUP. The MUP
has primarily helped local beekeepers and other local associations, which rarely include Batwa, to
engage in activities that are considered beneficial by the dominant society. With the exception of
wild yams, which are now being accessed by the Batwa in the last couple of years, the forest uses
considered critical by the Batwa community – including collecting firewood and building materials,
hunting small animals, fishing, collecting wild honey, mushrooms and fruit, and worshiping their
ancestors – have not been addressed by these programmes, despite being widely known. Their
forms of forest offtake are thus treated as illegal. A number of experts15 have recommended that the
Batwa, as the original inhabitants of the forest, the group with the greatest cultural dependence on
the forest and the community most adversely affected by conservation programmes, be treated as
a special group with special permission to access the forest in recognition of their rights. Additional
studies have reported that the extraction of wild yams and wild honey could be sustainably
managed; however, this advice has yet to be implemented.
The first comprehensive review of the memoranda of understanding (MoUs) since 1994 was
carried out in 2008. Whilst wild yams are now included in the new MoUs, wild honey and other
culturally-specific resources are still not included despite some resource extraction being supported
by research from the scientific community.
Participation in management
Bwindi Impenetrable National Park continues to be managed and administered with a top-down
approach by the Uganda Wildlife Authority (UWA), without any meaningful participation by the
Batwa. UWA has attempted to engage local communities around both Bwindi and Mgahinga
13 Mutebi 2003, p. 7.
14 Namara 2006, p. 58.
15 See for instance Kabananukye and Wily 1996.
154
through the appointment of representatives to Local Environmental Committees (LECs). The
selection process, however, which draws candidates from the local parish council committees
in surrounding areas, has institutionalised the exclusion of the Batwa, who are not represented
on these committees. The establishment of CPAIs has similarly failed to enhance community
participation in general, since members feel they are simply surrogates of the protected area
managers and government administrators as opposed to meaningful and equal participants.
Further, these institutions have not involved the Batwa as the current mode of representation is
based on local government structures and thus requires prior participation in leadership structures
in which the Batwa are not represented.
World Heritage designation
The nomination of Bwindi as a World Heritage site was submitted to UNESCO by the Government
of Uganda in 1992. In its Advisory Body Evaluation of the nomination, IUCN suggested that Bwindi:
“…is the most important area in Uganda for species conservation due to an exceptional
diversity that includes many Albertine Rift endemics. Bwindi has the highest diversity of
tree and fern species in East Africa, and may be the most important forest in Africa for
montane forest butterflies. Bwindi is also the home of nine globally threatened species,
including almost one half of the world’s population of mountain gorillas.” 16
In response, the World Heritage Committee in 1994 inscribed Bwindi as a World Heritage site
with the following justification: “The Committee inscribed this site which has one of the richest
faunal communities in East Africa, including almost half the population of the world’s mountain
gorillas, and one of Africa’s most important forests for butterflies and bird diversity.”17
It is not known if the Batwa were consulted at the time of nomination and, if any were, there
is no evidence to confirm it. In IUCN’s Advisory Body Evaluation there is only one mention of the
Batwa, which damningly testifies to the Batwa’s then situation and predicament,
“The earliest evidence of forest clearance dates back 4,800 years, most likely due to the
presence of the Batwa (hunter-gatherer) people manipulating vegetation with fire. This is
the earliest evidence for cultivation anywhere in tropical Africa. It was not until approximately
2,000 years ago that Bantu agriculturalists arrived in the region. The extensive knowledge of
wild animals and plants possessed by the Batwa people is threatened with disappearance
unless their way of life is restored, or their knowledge condensed onto paper.” 18
16 IUCN 1994.
17 UNESCO 1995, p. 47. A retrospective Statement of Outstanding Universal Value was adopted by the Committee in
June 2011. See Doc. WHC-11/35.COM/8E.
18 IUCN 1994.
155
The presence of the Batwa, and their inclusion in the nomination process, can best be inferred from
the Government of Uganda’s nomination document where, under the section outlining the justification
for including Bwindi as a World Heritage site, it is stated: “Cultural Property: Not Applicable”.19 It seems,
then, that the Batwa and their rich cultural heritage were not considered by the government at the time.
Since Bwindi’s inscription as a World Heritage site, there has also been no mention of the Batwa in any
of the World Heritage Committee’s reporting on Bwindi, which continues to suggest that the Batwa to
this day are not included in the thoughts and actions of either the Government of Uganda or UNESCO.
As a result of their exclusion from both the nomination process and the continued management
of Bwindi, it would be difficult to suggest that the Batwa have benefited from Bwindi’s inclusion
as a World Heritage site. If anything, the inclusion of Bwindi has only served to offer yet another
example of their continued marginalisation from their ancestral territories and has added another
layer of management which they were not consulted on and did not consent to.
Discussion
Importantly, the concepts of indigeneity, management, participation and rights are proving difficult
to define in south-west Uganda and this is a cause of the continued gulf between policy and
practice. If the Batwa are to gain any benefits from World Heritage status, it is important that these
concepts are acknowledged and discussed, with their full participation.
Indigeneity
One of the crucial obstacles preventing the realisation of the rights of the Batwa is the definition
of indigeneity as understood by the Government of Uganda and protected area (PA) managers in
Uganda. In Ugandan law, the definition of an indigenous person is outlined in the constitution of
Uganda as anyone existing and residing within the borders of Uganda before 1926. As a result,
indigenous people in Uganda are both everyone - there are 56 different ethnic groups listed in the
constitution as indigenous in 1926 - and no-one in particular at the same time.
In the case of the Batwa, this failure to acknowledge their internationally recognised indigenous
status20 has dramatic effects. On the one hand, when challenged to justify their support to indigenous
19 Government of Uganda 1992.
20 See, e.g., the Concluding Observations of the African Commission on Human and Peoples’ Rights on the 3rd Periodic
Report of the Republic of Uganda, in which the African Commission expresses its concern about “The apparent
lack of political will to take measures to realize the rights of indigenous populations especially the BATWA people
as guaranteed under the [African] Charter [on Human and Peoples’ Rights]” and “the exploitation, the discrimination
and the marginalization of indigenous populations, in particular the BATWA people of Uganda, who are deprived of
their ancestral lands and live without any land titles” (ACHPR 2009, paras. 21, 39). Also see the 2010 Report by the
Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, James Anaya to
the UN Human Rights Council, Chapter XXX (“Uganda: Situation of the Batwa people of southwest Uganda”), which
specifically addresses the situation in Bwindi; and CERD 2003, para. 14.
156
peoples in Uganda, the government and other agencies are able to highlight their support for local
communities surrounding Bwindi despite the fact that the internationally recognised indigenous Batwa
are not specifically targeted in any of the measures and are typically excluded. From the government’s
perspective, as all Ugandans are indigenous, their work with any Ugandan local communities
constitutes work with indigenous communities. A prime example is the case of the CPAIs, which
currently have no Batwa participating in their structures. Because of the constitutionally understood
definition of indigeneity, the CPAIs are often quoted as being one way in which indigenous people are
involved in park management, despite the fact that no Batwa are involved in the process.
On the other hand, the government is able to refuse to specifically focus on or target the Batwa
because, by law, the Batwa are not the only indigenous people in Uganda and do not deserve the
particular attention they should otherwise receive as internationally recognised indigenous people.
Management
The next issue that prevents the effective participation of the Batwa in the management of Bwindi
is the way in which the term ‘management’ is understood by the government, PA managers and
civil society groups. The meaning of management may vary in terms of the degree of participation
being offered to communities. At one extreme is a community-centred approach that “transfers all
management responsibilities and full property rights over natural resources to communities at the
local level”.21 At the other lies an approach that sees communities “not as proprietors of the nation’s
conservation estate but merely as its neighbours”.22 For many groups and agencies working in and
around Bwindi, management is rarely understood in terms other than benefit sharing or consultation.
Participation
This next issue follows on from the discussion above. Importantly, the question asked here is: what
does effective and meaningful participation actually mean? Some examples of ‘participation’ around
Bwindi include the consultations of local communities before the creation of the management plans,
the various benefit mechanisms and the MUP, whereby local communities identify the resources to
be harvested, agree the offtake amount and then manage the sustainable extraction of the resource.
In practice, however, while the communities may identify the desired resources it is the UWA
that takes the ultimate decision as to which resources are harvested and, despite the UWA claiming
that the local communities agree on the offtake quotas, the actual amounts of harvestable resources
are decided by scientific research into sustainable extraction amounts.
It is therefore doubtful whether these measures constitute effective and meaningful participation,
and instead constitute token handouts that do not go far enough to actively engage the Batwa in
meaningful participation. As Hulme and Murphree note of conservation policy more generally:
21 Hulme and Murphree 1999, pp. 278 ff.
22 Ibid.
157
“While the labels of community conservation and community-based conservation have
become widely used this is, to a significant degree, because of the positive image generated
by the idea of ‘community’ rather than because of their accuracy.” 23
Rights vs. privileges
The participation of the Batwa and local communities is often called into question by the continued
research being conducted into whether benefit sharing and collaborative management have been
able to decrease the illegal resource use of local communities around Bwindi. Many agencies and
actors working in and around Bwindi only acknowledge the need to specifically target the Batwa
because they see the Batwa as the biggest threat to biodiversity and not because of any inherent right
the Batwa may have. This understanding of participation begs the question of what is ‘appropriate’
and who gets to decide? This further suggests that what constitutes the effective and meaningful
participation of indigenous peoples in PA management is a subjective decision that is most often
made by PA managers and conservationists. From the experience of the Batwa around Bwindi, the
involvement of indigenous people is seen by most PA managers as a privilege that is facilitated by the
PA managers rather than a right which the Batwa have that does not require the privilege of others.
Recommendations
The Batwa must be included in the decision-making processes of Bwindi as a World Heritage site
so that they can help to shape and inform Bwindi’s future direction. Ultimately, such involvement
requires fundamental changes in the way in which the Batwa are involved in protected area
management across the board. These changes include the following:
• A commitment must be promoted at all levels of government to view communities as equal
partners in development and conservation. Stronger mechanisms are needed for their
participation, including the direct involvement of indigenous Batwa people in project design
and implementation and the administration of funds.
• Batwa communities should be recognized by government as a special group whose rights
to access and use of their ancestral lands must be protected when establishing and
implementing national legislation and policy. Where rights are being violated, legal action
should be considered.
• Building on the numerous existing studies, government should develop and implement, in
consultation with the Batwa, a targeted ‘Batwa and Protected Areas programme’ that
recognises and addresses Batwa needs and realities, including:
– Their unique historical land and resource rights in respect of their ancestral lands, with
reference to international human rights law;
23 Ibid., p. 283.
158
– Their particular cultural and socio-economic needs in respect of forest resource use
and access.
• Government should urgently implement a targeted and long-term programme, developed
in consultation with the Batwa, to increase the Batwa’s capacity to participate in decisionmaking bodies and processes, including:
Culturally-appropriate initiatives to improve Batwa access to education;
– Adult literacy programmes;
– Batwa community sensitisation and consultations on collaborative park management;
– Improved access to information for Batwa on protected area management in appropriate
languages and formats;
– Training and support for Batwa communities to strongly and independently represent
themselves;
– In tandem with the above measures, the adoption or creation of PA management
structures which are more inclusive and sensitive to the capacity of the Batwa.
• In partnership with the Ugandan government and the Uganda Wildlife Authority, the World
Heritage Committee should immediately carry out a review of Bwindi Impenetrable National
Park to ensure that the rights of the Batwa are being upheld and enshrined in its World
Heritage status. Where these rights are being violated, immediate steps should be taken to
redress the situation.
• Again in full collaboration with the Ugandan state, and in order to recognize the unique culture
of the Batwa, the World Heritage Committee should review Bwindi’s status as a site of natural
importance and seek to have Bwindi relisted as a site of both cultural and natural importance.
While certain frameworks exist, and there is growing recognition of community rights in relation to
protected areas, the genuine participation of the Batwa, based on a position of equality, remains
illusory in Uganda. Government authorities continue to act in a paternalistic manner and merely
pass on a few responsibilities to communities rather than empowering the Batwa to be active
partners in decision-making and implementation.
The Batwa, in particular, continue to suffer multiple layers of marginalisation in protected area
management. Not only were they arbitrarily evicted from their homeland, thereby suffering the greatest
injustice, they also now receive the least attention from government in the ongoing efforts to make
protected area management more socially responsible. From the example of Bwindi, it is clear that
despite the call for a new conservation paradigm, and a new set of standards that reflect such a call,24
in practice, protected area managers still perceive the Batwa as external to the conservation agenda.
Despite this, in 2011 two important opportunities have opened up which will hopefully provide
a new framework for relationships between the Batwa and protected area managers. Firstly, the
joint tourism venture in neighbouring Mgahinga offers a chance for the Batwa’s unique cultural
24 See in particular IUCN World Parks Congress 2003 (Durban Action Plan); CBD 2004 (Programme of Work on
Protected Areas); and the resolutions on indigenous peoples adopted at the 4th IUCN World Conservation Congress
in Barcelona, 2008 (Resolutions 4.049-4.056).
159
Batwa cultural mapping of important sites in Bwindi.
Photo: United Organisation for Batwa Development in Uganda
knowledge and heritage to be included in the ongoing conservation of these forests. If this venture
proves successful, it could lead to broader relationships that go beyond tourism revenue and allow
for meaningful participation in the management and future of Bwindi.
Secondly, the Batwa’s own NGO in Uganda, the United Organisation for Batwa Development
in Uganda, supported Batwa communities to carry out a month long cultural mapping of Bwindi
Impenetrable National Park. For the first time, the mapping process allowed over 100 Batwa from
the ten communities neighbouring Bwindi to apply their traditional knowledge and heritage to a
three-dimensional model of their ancestral lands. Some of the information documented included
the location of sacred sites and burial sites within the national park as well as the locations of some
of the Batwa’s most cherished resources, such as wild honey, wild yams and medicinal herbs.
The completed model stands as testimony to their extensive knowledge and attachment to Bwindi
forest and offers a real chance for protected area managers to finally include such knowledge in the
future management of Bwindi. The Batwa hope that this model will, among other things, help them
access employment and resources within the park and help them develop a more meaningful role
in its continued management. It is opportunities such as these that need to be grasped by protected
area managers so that the injustices of the past can be redressed in significant and meaningful
ways. If this can be done, the potential is there for a new and more equitable future to be realized
whereby the Batwa are acknowledged as essential to the conservation of the heritage contained
in Bwindi Impenetrable National Park.

160
References
ACHPR. 2009. Concluding Observations of the African Commission on Human and Peoples’ Rights on the 3rd Periodic
Report of the Republic of Uganda (presented at the 45th Ordinary Session of the African Commission in Banjul, May
2009.
Anaya, J. 2010. Report by the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous
people, James Anaya to the UN Human Rights Council. UN Doc. A/HRC/15/37/Add.1, 15 September 2010.
CBD. 2004. Programme of Work on Protected Areas (adopted by the Conference of the Parties to the Convention on
Biological Diversity at its Seventh Meeting). Doc. UNEP/CBD/COP/DEC/VII/28, 13 April 2004, Annex.
CERD. 2003. Concluding Observations of the Committee on the Elimination of Racial Discrimination: Uganda, UN Doc.
CERD/C/62/CO/11, 2 June 2003.
Dart, R. A. 1960. Can the Mountain Gorillas be Saved? Current Anthropology, Vol. 1, No. 4, pp. 330-333.
Government of Uganda. 1992. Bwindi Impenetrable National Park: World Heritage Site Proposal. Uganda National Parks.
Hamilton, A., Baranga, J. and Tindigarukayo, J. 1990. Proposed Bwindi (Impenetrable) Forest National Park: Results
of Public Enquiry and Recommendations for Establishment (Draft Report). Kampala, Uganda National Parks, p. 16.
Hingston, R. 1931. Proposed British National Parks for Africa. The Geographical Journal, Vol. 77, No. 5, pp. 401-422.
Hulme, D. and Murphree, M. 1999. Communities, Wildlife and the ‘New Conservation’ in Africa. Journal of International
Development, Vol. 11, No. 2, pp. 277-286.
IUCN. 1994. Advisory Body Evaluation – Bwindi World Heritage Nomination – IUCN Summary.
IUCN. 2009. Resolutions and Recommendations, World Conservation Congress, Barcelona, Spain, 5-14 October 2008.
Gland, IUCN.
IUCN World Parks Congress. 2003. Durban Action Plan. Adopted at the 5th IUCN World Parks Congress, March 2004.
Kabananukye, K. and Wily, L. 1996. Report on a Study of the Abayanda Pygmies of South Western Uganda. Kabale,
Mgahinga and Bwindi Impenetrable Forest Conservation Trust.
Kidd, C. and Zaninka, P. 2008. Securing Indigenous Peoples’ Rights in Conservation: A review of south-west Uganda.
Moreton-in-Marsh, Forest Peoples Programme.
Mutebi, J. 2003. Co-managed Protected Areas: from conflict to collaboration. Experience in Bwindi Impenetrable National
Park, Uganda. Kampala, CARE Uganda.
Namara, A. 2006. From paternalism to real partnership with local communities? Experiences from Bwindi Impenetrable
National Park (Uganda). Africa Development, Vol. XXXI, No. 2, pp. 39-68.
Phillipps, T. 1930. Gorillas at home. The Times, 8 February 1930, p. 13.
Taylor, D., Robertshaw, P. and Marchant, R. 2000. Environmental change and political economic upheaval in pre-colonial
western Uganda. The Holocene, Vol. 10, No. 4, pp. 527-536.
Uganda Bureau of Statistics. 2002. 2002 Uganda Population and Housing Census. Available at http://www.ubos.org.
UNESCO. 1995. World Heritage Committee, Eighteenth Session, Phuket, Thailand, 12-17 December 1994: Report. Doc.
WHC-94/CONF.003/16, 31 January 1995.
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2011.
World Bank. 1995. Uganda: Bwindi Impenetrable National Park and Mgahinga Gorilla National Park Conservation.
Washington DC, World Bank (Global Environment Facility, Project Document 12430 – UG), Annex 6.
161
162
163
Ignoring Indigenous Peoples’ Rights:
The Case of Lake Bogoria’s Designation as
a UNESCO World Heritage Site
Korir Sing’Oei Abraham
Introduction
he ‘Kenya Lake System in the Great Rift Valley’ was added to UNESCO’s World Heritage
List in June 2011 during the World Heritage Committee’s 35th ordinary session at UNESCO
Headquarters in Paris. The ‘serial’ World Heritage site1 covers a total area of 32,034 hectares and
comprises three alkaline lakes, together with their surrounding territories, on the floor of the Great
Rift Valley in Kenya: Lake Bogoria (10,700 ha), Lake Nakuru (18,800 ha) and Lake Elementaita
(2,534 ha). The focus of this chapter is Lake Bogoria, located some 100 km to the north of the
other two lakes.
T
1‘Serial’ sites are those World Heritage sites that consist of two or more geographically separate component parts.
Left: Endorois men celebrating the 2010 ruling of the African Commission on Human and Peoples’ Rights calling for the
restitution of Endorois ancestral lands around Lake Bogoria. Photo: Lewis Davies
164
The three lakes are home to an exceptional diversity of birds, including enormous flocks of
Lesser Flamingos, and contain important populations of numerous threatened bird as well as
mammal species. They are surrounded by hot springs, geysers and the steep escarpment of the
Rift Valley with its volcanic outcrops. Because of its exceptional scenery and geological, ecological
and biological features, the serial site was inscribed on the World Heritage List as a natural site with
reference to criteria (vii), (ix) and (x).2 The three lakes have also each been internationally
recognized as wetlands of international importance under the 1971 Ramsar Convention on
Wetlands.
Under national law, Lake Elementaita is protected as a National Wildlife Sanctuary, while Lake
Nakuru is a National Park and Lake Bogoria a National Reserve. Geographically, the Kenya Lake
System lies within the former Rift Valley Province. Under the new administrative set-up provided by
the 2010 Kenyan Constitution, the Lake System straddles two counties, with both Lake Elementaita
and Lake Nakuru located within Nakuru County and Lake Bogoria lying within Baringo County.3
The area is occupied by several ethnic groups, including two distinct indigenous groups: the
Endorois and the Maasai. The other ethnic groups who live in this region are the Agikuyu, Kipsigis,
Tugen and Pokot, as well as a sprinkling of other ethnic groups, especially within the cosmopolitan
Nakuru town.4 The focus of this chapter shall be exclusively confined to the indigenous Endorois
community, who live around Lake Bogoria within Baringo County.
The Endorois number approximately 60,000 people. The community is, and always has been,
largely pastoralist with a strong sense of communal access to natural resources. Its leadership is
entrusted to elders. The communal lifestyle and social cohesion of the Endorois is illustrated by the
way in which they rely on a representative organization, the Endorois Welfare Council (founded in
1996), as the medium through which they channel their grievances. The Endorois’ communal
lifestyle is quite resilient and has weathered many storms over the years. This resilience was
particularly evident in the face of adversity visited upon the community when the Government of
Kenya forcefully evicted them from their area of habitation on the shores of Lake Bogoria after the
Lake Bogoria Game Reserve was created in 1973. The eviction rapidly forced the community into
abject poverty, from which they have yet to recover. Beginning in the 1990s, the Endorois began to
challenge the legality of their eviction in the courts, first at the domestic level and later at the African
Commission on Human and Peoples’ Rights (ACHPR), which in 2009 issued a landmark ruling in
the community’s favour, laying new ground for the defence of the traditional and customary land
rights of indigenous peoples throughout Africa.5
The area around Lake Bogoria is of great social, economic and cultural significance to the
Endorois community. From an economic standpoint, the lake provides water and the area’s fertile
soil provides green pasture as well as medicinal salt lick for the community’s livestock, keeping the
2
3
4
5
World Heritage Committee Decision 35 COM 8B.6 (2011).
See the First Schedule of the new Kenyan Constitution, promulgated on 27 August 2010. The counties envisioned by
the 2010 Constitution are supposed to become fully operational after the 2012 general elections.
Koigi wa Wamwere 2010.
ACHPR 2009, Decision on Communication 276/2003, Centre for Minority Rights Development (CEMIRIDE) and
Minority Rights Group International (MRG) on behalf of Endorois Welfare Council v Kenya.
IGNORING INDIGENOUS PEOPLES’ RIGHTS: THE CASE OF LAKE BOGORIA’S DESIGNATION AS A UNESCO WORLD HERITAGE SITE
165
Flamingos and zebras on the shores of Lake Bogoria. The massed congregations of flamingos on the shores
of Lake Bogoria are one of the main reasons for the lake’s listing as a World Heritage site and a significant
attraction drawing tourists to the park. Photo: Geoffroy Mauvais, IUCN (CC BY-NC-SA 2.0)
cattle healthy and the community’s pastoralist enterprise alive. Further, from a social perspective,
the lake epitomizes the community’s religious and other traditional practices, given that the areas
contiguous to the lake provide the community with sacred prayer sites, venues for initiation rites
such as circumcision rituals, and grounds for hosting the periodic assembly of the community,
where norms are enacted and given force. The spirits of every dead member of the community are
believed to repose within the lake, irrespective of where the person was buried.6 In addition to the
lake itself, members of the community also regard the neighbouring Mochongoi Forest as sacred
ground, which they consider as their birthplace.7 Thus, the landscape upon which the community’s
livelihood derives is important for their social, cultural as well as spiritual needs.
The eviction of the Endorois from Lake Bogoria Game Reserve
While all three lakes are protected under national law, this paper shall confine itself to the Lake
Bogoria Game Reserve. This is because, out of the three lakes, Lake Bogoria is the one whose
protection efforts have had the most far-reaching effects upon the Endorois indigenous community.
Lake Bogoria Game Reserve was established in 1973, through the declaration of Legal Notice
6
7
World Wildlife Federation 2004, p.16, para. 2.1.10.2.
Ibid.
166
Number 239, as “Lake Hannington National Reserve”. The name of the reserve was changed one
year later, through another Legal Notice, to Lake Bogoria Game Reserve.8
The establishment of the Reserve was not without controversy; a controversy that persists to
this day. During the colonial period, the land around Lake Bogoria was part of the Suk-Kamasia
‘native reserve’ and was reserved for the sole use of the native community in the area, the Endorois.
At Kenyan independence, in 1963, native reserves were converted into Trust Lands. Such lands
were vested upon the respective local authorities (county councils) in trust for the people ‘ordinarily
resident’ (a term of art meaning the native community of the area).9 The particular local authorities
in which the land around Lake Bogoria was vested were the County Councils of Baringo and
Koibatek. These two county councils were thus entrusted to manage the land and its attendant
resources for the benefit and on behalf of the members of the Endorois community as well as the
other communities who ordinarily resided within the area in question.10
The process by which the government extinguished the proprietary interests within Trust Lands
was known as ‘setting apart’. This process was provided for by section 117 of the old Constitution11
as read together with the Trust Land Act.12 The process of setting apart could be initiated by the
local authority under which the land in question was situated or the President of the Republic.
Beginning in 1973, the government designated the most important of Endorois lands as a
game reserve. This decision was not preceded by consultation in good faith through the
representative institutions of the affected community, in line with today’s international standards
affirming the right of indigenous peoples to effectively participate in decisions that affect them.13 All
that happened was unilateral and undocumented promises made by the government ostensibly to
ameliorate the resulting vulnerabilities arising from the group’s impending displacement. Unfettered
access to Lake Bogoria, construction of cattle dips, building of schools and, most importantly,
relocation to land of equal value, constituted the most significant promises made by state officials
to the community leadership.14 The state did not extend any real choice to the community, and did
not extend an invitation to it to reject, amend or accept the proposed development intervention. The
removal of the community from Lake Bogoria in this context of unequal bargaining power and
8 No. 270 of 1974.
9 Section 115, Constitution of Kenya (repealed in 2010).
10 These two county councils have since been combined into a single entity, the Baringo County Government, which has
absorbed their responsibilities and authorities.
11 The effect of ‘setting apart’ in law was clear: “Where a county council has set apart an area of land in pursuance of
this section, any rights, interests or other benefits in respect of that land that were previously vested in a tribe, group,
family or individual under African customary law shall be extinguished.” Section 117(2) Constitution of Kenya (repealed
in 2010).
12 Chapter 288, Laws of Kenya.
13 See e.g., UN Declaration on the Rights of Indigenous Peoples (2007), Art. 18; ILO Convention (No. 169) concerning
Indigenous and Tribal Peoples in Independent Countries (1989), Art. 6; Committee on the Elimination of Racial
Discrimination, General Recommendation No. 23: Indigenous Peoples (1997), para. 4(d); and UN Expert Mechanism
on the Rights of Indigenous Peoples, Expert Mechanism Advice No. 2 (2011): Indigenous peoples and the right to
participate in decision-making.
14 See Witness Statement of Richard Arap Yegon, dated 15 August 2005 (on file with author) submitted in support of the
Endorois Communication before the African Commission.
167
coercion was neither consensual nor based on an informed appreciation of the scope of the state’s
intrusion into the community’s livelihood.
The establishment of the game reserve within the area inhabited by the Endorois community
marked a turning point in the rhythm of their lives and livelihoods. This is because the game reserve
is a protected area where access of people and livestock is restricted. Consequently, the members
of the community and their livestock were denied access to the lake and the surrounding areas.
This meant the community’s livelihood, heavily dependent on mobile livestock keeping, was directly
and seriously threatened. The lack of access to their lands and resources, on which they relied to
sustain their livelihoods, formed the basis upon which the community instituted the legal action both
at the Kenyan High Court and at the African Commission on Human and Peoples’ Rights (see
below).
The marginalization of the Endorois in the management of Lake Bogoria
Game Reserve
Background
The management of wildlife protected areas is generally the preserve of the state, through a
parastatal organization, the Kenya Wildlife Service (KWS). The Kenya Wildlife Service is a creation
of the Wildlife (Conservation and Management) Act.15 Under this law, there are three regimes of
wildlife protection, namely: National Parks, National Reserves and Local Sanctuaries. National
Parks are under the direct management of the KWS while National Reserves are managed
and controlled by the local authorities within whose jurisdictions they are located (although
according to national policy set by the KWS). Local sanctuaries are privately-owned ranches. The
role of indigenous communities, and indeed any communities, in the decision-making over the
management of protected areas in Kenya is thus very restricted. This is because the exclusive role
of either the KWS or the local authorities is imposed by the operation of the law. Local authorities
(recently reformed into county governments) are sub-national units with their own governance
structures, which provide social services within their area of jurisdiction and also manage certain
natural resources on behalf of the residents who are ordinarily resident within the area in question,
operating under the laws of the state.
Lake Bogoria Game Reserve, the establishment of which displaced the Endorois indigenous
community, is a National Reserve. Consequently, its management and control falls within the
jurisdiction of the relevant local authority or county government. During its creation, this was the
County Council of Baringo, and is now the Baringo County Government.16
16 In the late 20th century Baringo was divided into two separate Councils, the Baringo and Koibatek County Councils,
although this division has been reversed back and the local authority is now the recombined Baringo County
Government.
168
The Endorois community lacks direct participation in and control over the management of this
protected area. Instead, the community has to contend with an indirect role in the decision-making
over the management, through their elected representatives in the county councils (the county
councils are controlled by councillors elected during General Elections). The role of the Endorois
community in decision-making regarding the Game Reserve is therefore very limited and their input
is predicated only upon the role of the county councillors. This indirect role of the Endorois
community is premised upon the fallacy that democratic elections ensure an effective participation
of indigenous communities in the management of protected areas in Kenya.17 Even though the
democratic process does allow for some form of participation, international standards on effective
representation require that indigenous peoples themselves be allowed to determine the procedures
for choosing their own representatives in the state’s governing bodies (whether traditional or
otherwise).18
Further, two fallacies regarding the indirect representation of indigenous peoples emerge.
Firstly, most of the indigenous communities are numerically disadvantaged and not able to make
an electoral impact within their areas.19 As a consequence, such communities are usually underrepresented and hence unable to influence the management and decision-making within the
councils. This means that they are excluded from playing the active roles that one would expect
them to play as major stakeholders and rights holders within the respective protected sites.
Secondly, there is simply no guarantee that the decisions to be made or taken by the elected
representatives will always be in tandem with the requirements of the community. Processes such
as the elaboration of management plans are usually devoid of consultations between the county
councils (and/or the KWS) on the one hand and the local communities on the other. Elected
councillors, even those with the support of the community, are not mandated to represent the
Endorois specifically but rather to fulfil the usual democratic mandate of representing their
constituency as a whole. This does not provide the Endorois with representative participation in the
county councils, nor does it enable enjoyment of the right to effective participation in decisionmaking as outlined in the UN Declaration on the Rights of Indigenous Peoples. In a nutshell, then,
the present governance structures do not ensure the adequate, informed and effective participation
of indigenous peoples.
17 For instance, in the context of the African Commission on Human and Peoples’ Rights, the Government of Kenya has
argued “that the community is represented in the Country Council by its elected councillors, therefore presenting the
community the opportunity to always be represented in the forum where decisions are made pertaining to development”
(ACHPR 2009, para 276).
18 See United Nations Declaration on the Rights of Indigenous Peoples, Art. 18: “Indigenous peoples have the right to
participate in decision-making in matters which would affect their rights, through representatives chosen by themselves
in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making
institutions.”
19 For instance, the population of the Endorois community is estimated as being just about 60,000 people. Political and
administrative boundaries have been created in such a way as to fracture the community into several constituencies,
thereby making it difficult for the community to be represented by one of their own in parliament.
169
Non-recognition of the Endorois’ own decision-making institutions
The Endorois community is strongly communal. The community’s decision-making structures
revolve around an institution known as the Endorois Welfare Council (EWC). Its decision-making
process is a deliberative process that takes place under the auspices of the EWC. However, like
the rest of the ethnic-based institutions in Kenya, the EWC was denied registration by the Kenyan
government during the 24 long years of President Moi’s rule between 1979 and 2003. This left the
Endorois community without any recognized avenue through which it could deliberate on, make or
communicate community decisions to the government.
The government’s refusal to register the Endorois Welfare Council was also one of the reasons
that informed the community’s decision to seek legal redress. Numerous attempts by the community
to have the EWC registered were unsuccessful. The African Commission on Human and Peoples’
Rights has noted that the lack of registration for the EWC has denied the community the right to fair
and legitimate consultation:
“The EWC, the representative body of the Endorois community, have been refused
registration, thus denying the right of the Endorois to fair and legitimate consultation. The
Complainants further allege that the failure to register the EWC has often led to illegitimate
consultations taking place, with the authorities selecting particular individuals to lend their
consent ‘on behalf’ of the community.” 20
Taking cognizance of this shortcoming, the African Commission recommended that the Government
of Kenya grant registration to the EWC so as to enable the community to effectively participate in
decisions and development processes affecting their territory.21
While the EWC has enjoyed, and continues to enjoy, great authority and credibility as the
community’s decision-making organization, negotiating group and mouthpiece, some dissenting
voices have emerged.22 The dissenting voices, receiving tacit encouragement from the state,23
have objected to the validity of the EWC as the community’s sole interlocutor vis-à-vis the state.
Consequent upon this, the effectiveness of the EWC’s engagement has been severely tested. The
apparent divisions, while not effectively weakening the community’s ability to mount advocacy
initiatives and engage the authorities on matters relating to their economic welfare, have been used
as an excuse by the state and its agencies to do less than would otherwise be expected. This
especially relates to Lake Bogoria Game Reserve.24
20
21
22
23
ACHPR 2009, Decision on Communication 276/2003, para. 280.
Recommendation 1(e) of the African Commission on p. 178.
Okoth 2011.
The Kenyan government sponsored some members of the Endorois community to denounce the community’s efforts
at the African Commission and to present a documentary that was designed to portray the community as either having
fully embraced modernity or having been well integrated into national development.
24 Okoth 2011.
170
Lack of recognition of Endorois land, resource and usage rights
For most indigenous communities in Kenya, both the use of and access to land and land-based
resources was, and remains, customary. The customary mode of such access has usually been
what is sometimes termed ‘the communal type’.25 Under this mode of access, each member of
the community has the right to use the land in perpetuity on the condition that proper land-use
practices that ensure inter-generational equity are pursued. This is the form of land tenure that the
Endorois community practices.26
Under the old Constitution, private (individual) land tenure was considered superior to other
forms of land tenure, such as the communal title. This was largely due to the fact that private tenure
accorded the rights holder an indefeasible registered title.27 In contrast, the communal (customary)
tenure did not offer registered title to the users. In fact, the communal form of land tenure was
largely practised within the Trust Lands as set out in section 114-118 of the old Constitution.
One of the most important recent achievements precipitated by the country’s new Constitution,
adopted in 2010, has been the elevation of communal (customary) tenure to the same level as
private (individual) tenure. The 2010 Constitution categorizes land into public, private and
community land.28 The entry point for communal land tenure is through the category of community
land. Based on this elevated status of communal tenure, the customary land and resource rights
and the land-use systems of indigenous communities stand a real chance of being respected if
enabling legislation is enacted. However, legislation to give effect to these constitutional provisions
has not yet been enacted by parliament due to vested interests in land. Consequently during this
transitional period – which could stretch to five years if political commitment is lacking – many
institutions continue to deal with land that could potentially be protected as community land as if
such lands were still solely under the complete legal authority of the county councils, deliberately
forgetting or de-emphasizing the need for community consultations. For instance, in the course of
seeking the designation of Lake Bogoria as a World Heritage site, KWS relied entirely on the Lake
Bogoria National Reserve Integrated Management Plan 2007-2012, and did not factor in the effects
of the new Constitution on this strategy.
In this Management Plan, the only hint of the existence of the Endorois is a reference to the
community’s Cultural Centre, which is only mentioned because it “has traditional artifacts and
resident traditional dancers’ troupes” that may be of interest to visitors.29 The Management Plan
sees no role for the Endorois’ communal organizations and structures in developing consensus
around the implementation and formulation of conservation and management measures, instead
proposing a reliance on “inter-sectoral” and “interdisciplinary teams”.30 Assuming that this
25
26
27
28
29
30
Garner 2004.
See ACHPR 2009, para. 16.
Section 28 of The Registered Land Act, Chapter 300, Laws of Kenya.
See Articles 61-64 of Constitution of Kenya, 2010.
Baringo County Council and Koibatek County Council 2007, p. 19.
Ibid., p. 23.
171
Management Plan will form the basis for securing compliance with the UNESCO World Heritage
Convention, it will no doubt result in the exclusion or, at most, the marginal participation of the
Endorois in the decision-making regarding the World Heritage site.
More disconcertingly, Kenya appears to be using the designation of Lake Bogoria as a World
Heritage site merely as a political cover to further deprive the community of its rights to the land.
The acts of the Kenyan State, if properly examined, are incompatible with the professed intent to
protect the natural beauty of the Kenya Lake System. For instance, the state, through its geothermal
energy generation company, KENGEN, has invited bids for investment in electricity generating
plants using steam within the Bogoria-Silali area (again without the consent of the Endorois).31 This
action by the state is worrying, considering that it not only violates the land and resource rights of
the Endorois community but also threatens the objectives of conserving the Kenya Lake System’s
natural beauty, both flora and fauna. This action may be interpreted in two ways. First, that it is a
poignant indication that the state has not fully appreciated the need to fully co-operate with
indigenous communities as rights holders. In the state’s view, the community is just like any other
stakeholder, whose rights and interests can be conveniently dispensed with. Second, that the
state’s action is an indication that national development interests (i.e. geothermal energy production)
will always trump community rights or environmental concerns. From a sustainable development
perspective, these remain worrying conclusions.
At the same time as Endorois land is being tacitly licensed for the production of alternative
energy needed for national development, grazing easements and other access rights of the
Endorois, which the government is obligated to ensure according to the African Commission’s
decision,32 continue to be severely restricted, discretionary and uncertain. The Endorois continue
to face the grave situation described by the Commission as constituting “limited access to Lake
Bogoria for grazing their cattle, for religious purposes, and for collecting traditional herbs… [T]he
lack of legal certainty surrounding access rights and rights of usage renders the Endorois completely
dependent on the Game Reserve authority’s discretion to grant these rights on an ad hoc basis.”33
One positive development, however, was the permission granted to the Endorois in February 2010
to host a high-profile cultural festival to formally receive the decision of the African Commission and
celebrate their victory. The ceremony of returning to their land “was full of elaborate rituals”, as The
Standard reported. “The community’s elders – old men with grey hair, others with countable strands
of hair – led the community into reconciling and reuniting with their ancestors at the shores of the
lake.” Old women who had become alienated from their soil and community life courtesy of the
forced displacement, “reconnected by brushing and braiding their hair – perhaps a ritual in the past
as they collected firewood along the shores of the lake…” 34
31
32
33
34
Okoth 2011; Senelwa 2011.
ACHPR 2009, Decision on Communication 276/2003, para. 298 and Recommendation 1(b) on p. 178.
Ibid., para. 15.
Kiprotich 2010.
172
Lack of benefit-sharing
Kenya is renowned for its great wildlife and biodiversity, hence its position as a top international tourist
destination. Most of the wildlife is conserved within the country’s National Parks, Game Reserves
and the Local Sanctuaries established within the Wildlife (Conservation and Management) Act.35
Tourism has, over the years, shot up to become one of the country’s topmost foreign exchange
earners. In fact, according to Central Bank figures from 2008, tourism ranked as the second most
important foreign exchange earner after the horticulture industry, with a net income of Kshs 65.4
billion (US $1.04 billion).36
While it cannot be denied that the protected areas have been an economic boon to the national
government, it is equally true that the economic benefits generated have not been equitably shared.
In particular, there have long been murmurs among the indigenous people within the Kenya Lake
System area, especially the Endorois community, regarding the lack of a benefit-sharing
mechanism. During the establishment of the Lake Bogoria Game Reserve, the Kenyan government
promised members of the community that they would benefit from jobs and other social amenities.
The government did not keep its promise to the indigenous community. Consequently, the members
of the community have contested their eviction and the lack of direct economic benefits to their
kinsmen.
The lack of benefit sharing from the economic activities within the Lake Bogoria Game
Reserve became a constant source of irritation in the relationship between the government and the
indigenous community. In fact, among the legal claims raised by the community before the High
Court of Kenya, it stood out more prominently than the rest. In dismissing the community’s quest
for benefit sharing, the court observed that “the law did not allow individuals to benefit from such a
resource simply because they happen to be born close to the natural resource.”37 The reasoning
here is clear: there was no legal obligation on the state to ensure that communities directly benefit
from revenue accruing from protected areas in their locality. In contrast, and cognizant of the
failure of government revenue redistribution systems, the African Commission directed that the
Government of Kenya pay royalties to members of the community from the economic activities
(read: tourism and ruby mining) that derive from the Game Reserve.38
Lack of training and capacity building for the indigenous community
The management of wildlife protected areas in Kenya is a preserve of the Kenya Wildlife Service,
local authorities and private individuals. More often than not, training in management of the protected
36 Kimathi 2008.
37 William Ngasia and Others v Baringo County Council and Others, High Court Miscellaneous Civil Case No. 159 of
1999.
38 See recommendation 1(d) of the Endorois decision (ACHPR 2009, p.178).
173
areas is a preserve of the officers of the KWS and local authorities. There is very little evidence
of support and training for the local communities, especially not the indigenous communities. As
a matter of course, therefore, the roles that such communities play in the management of the
protected areas, if any, remains largely peripheral since their own expertise and potential remain
largely untapped.
However, where private partnerships between communities and investors have led to the
development of wildlife conservancies, community members are often beneficiaries of conservationrelated training. For instance, the Northern Rangeland Trust (NRT), active in Isiolo, Samburu and
Laikipia districts, recruits “skilled management staff with high standards of training” while availing
“further education… to Community Conservancy staff.” For the most part, staff employed by NRT
are from the local population, mainly Samburu and Borana communities.39 In contrast, few if any
initiatives to increase the skills of the Endorois in wildlife conservation specifically, or in the
hospitality industry generally, have been witnessed. Indeed, the community has watched with
dismay as the main hotel in the reserve, the Lake Bogoria Hotel and Spa, has continued to pass
over the community when it comes to employment opportunities, instead preferring dominant
groups from the district on the grounds that these latter are better educated.
The landmark ruling of the African Commission on Human and Peoples’
Rights (2010)
The forceful eviction of the Endorois from Lake Bogoria caused much suffering to the community and
threatened its cultural integrity and economic survival due to the deaths of thousands of livestock as a
result of the loss of grazing grounds. Consequently, the creation of the Lake Bogoria Game Reserve
is a phenomenon that has become the subject of numerous political and legal battles both within the
Kenyan court system as well as at the African Commission on Human and Peoples’ Rights. On the
domestic front, the community was unsuccessful in challenging the government’s decision to evict
them to pave way for the establishment of the Lake Bogoria Game Reserve. This was the reality the
community had to grapple with through the outcome of the case of William Yatich Sitetalia & others
v. Baringo County Council & others.40 The unfavourable result in this case impelled the community to
turn to the African Commission, whose decision, delivered in November 2009 (and adopted by the
African Union on 2 February 2010), was in the community’s favour.
The Commission found that the Endorois’ forced eviction from their ancestral lands and the
failure to adequately involve them in the management, benefit sharing and decision making of the
reserve had violated their right to practise their religion, their right to property, their right to culture,
their rights to free disposition of natural resources and their right to development (Articles 1, 8, 14,
17, 21 and 22 of the African Charter on Human and Peoples’ Rights). It recommended that the
government:
39 Northern Rangelands Trust 2012.
40 High Court Civil Case No.183 of 2000.
174
“a) Recognise rights of ownership to the Endorois and Restitute Endorois ancestral land.
b) Ensure that the Endorois community has unrestricted access to Lake Bogoria and
surrounding sites for religious and cultural rites and for grazing their cattle.
c) Pay adequate compensation to the community for all the loss suffered.
d) Pay royalties to the Endorois from existing economic activities and ensure that they benefit
from employment possibilities within the Reserve.
e) Grant registration to the Endorois Welfare Committee.
f) Engage in dialogue with the Complainants for the effective implementation of these
recommendations.
g) Report on the implementation of these recommendations within three months from the date
of notification.” 41
In finding against the Government of Kenya, and that the Endorois community had suffered a
violation of its right to development, the African Commission stressed that the Government of Kenya
“is obligated to ensure that the Endorois are not left out of the development process or benefits”
and that “[c]losely allied with the right to development is the issue of participation”.42 Development
should result in the empowerment of the Endorois and an improvement in their capabilities and
choices, the Commission noted, in order for their right to development to be realized.43 If, therefore,
the Government of Kenya had “allowed conditions to facilitate the right to development as in the
African Charter, the development of the Game Reserve would have increased the capabilities of
the Endorois, as they would have had a possibility to benefit from the Game Reserve.” However,
the African Commission is convinced that the Endorois “have faced substantive losses” as a result
of the establishment of the Reserve, including “the actual loss in well-being and the denial of
benefits accruing from the Game Reserve. Furthermore, the Endorois have faced a significant
loss in choice since their eviction from the land.” In particular, “the forced evictions eliminated any
choice as to where they would live”.44 On the issue of participation, the Commission agreed with
41 ACHPR 2009, Decision on Communication 276/2003, p. 178, Recommendations. The legal effect of the Commission’s
recommendations can be derived from Article 27 of the Vienna Convention on the Law of Treaties (VCLT), 11155
U.N.T.S. 331(1980). In International Pen and Others (on behalf of Saro Wiwa) v Nigeria, Communication 154/96, the
Commission noted that non-compliance with provisional measures issued under Article 111 of the Commission’s Rules
of Procedure constituted a violation of Article 1 of the African Charter (see para 122 of the decision). In reflecting on
this failure, the Commission echoes the VCLT thus: “The Nigeria government itself recognizes that human rights are
no longer solely a matter of domestic concern… once ratified, state parties to the Charter are legally bound to its
provisions…” (para. 116). In 2010, the Commission adopted new rules of procedure that provide both a comprehensive
follow-up process for the recommendations it makes, and establish a process to refer cases to the African Court
where implementation does not result. Under Rule 115 of the Commission’s new rules, there are specific timelines for
states to respond to the Commission on matters of implementation. Previously, at its 40th session (November 2006),
the Commission had adopted a Resolution on the Importance of the Implementation of the Recommendations of
the African Commission on Human and Peoples’ Rights obliging states to report on measures taken and constraints
encountered within 90 days of notification of decision.
42 Ibid., paras. 289, 298.
43 Ibid., para. 283.
44 Ibid., paras. 279, 297.
175
Lake Bogoria is surrounded by hot springs and geysers representing important sacred sites for the Endorois.
The ACHPR has held that the forced eviction of the Endorois from their ancestral lands “removed them from the
sacred grounds essential to the practice of their religion, and rendered it virtually impossible for the Community to
maintain religious practices central to their culture and religion”. Photo: Corrado Mostacchi (CC BY-NC-ND 2.0)
the Endorois “that the consultations that the Respondent State did undertake with the community
[regarding the development of the Game Reserve] were inadequate and cannot be considered
effective participation”, as “community members were informed of the impending project as a fait
accompli, and not given an opportunity to shape the policies or their role in the Game Reserve…
[T]he Respondent State did not obtain the prior, informed consent of all the Endorois before
designating their land as a Game Reserve and commencing their eviction”.45
The Commission underlined that, in the case of “any development or investment projects that
would have a major impact within the Endorois territory, the State has a duty not only to consult with
the community, but also to obtain their free, prior, and informed consent, according to their customs
and traditions.”46 The question of whether a proposed development constitutes a “major impact”
can only be determined on a case-by-case basis, taking into account, among other things, the
extent to which an intervention may impede the practise of traditional livelihood and culture. There
can be no doubt that the designation of Lake Bogoria as a World Heritage site falls within this
category, as World Heritage status can potentially have far-reaching consequences for indigenous
45 Ibid., paras. 281, 290.
46 Ibid. para. 291.
176
peoples and their ways of life.47 As will be further discussed below, this is also the view held by the
African Commission, which in the context of reviewing Kenya’s implementation of its
recommendations in the Endorois case has expressed deep concern about the lack of consultation
with the Endorois in the process of designating Lake Bogoria as a World Heritage site.
Despite various promises to implement the African Commission’s ruling, the Kenyan government
is thus far continuing to act as if the ruling did not exist.48 In November 2011, the Endorois Welfare
Council noted in a statement at the 50th Ordinary Session of the African Commission:
“Your ruling recognized Endorois’ rights over our ancestral land, and offered justice to the
Endorois people, who have struggled for over 40 years in an effort to make the Government
uphold our rights, and respect our livelihood and security. This landmark decision was
expected to bring back hope and life not only to the indigenous populations in Kenya,
but in Africa as a whole… However, despite… the clear directive from the Honourable
Commission, the state party has refused to implement the ruling or negotiate with the
Endorois indigenous community… The Kenyan Government promised implementation
to this Commission in the 48th session… Despite these promises, the Government has
been taking steps which don’t respect the ruling, for example the Government earlier this
year went ahead to propose Lake Bogoria National Reserve a UNESCO World Heritage
Designation, without Endorois consultation.” 49
The World Heritage designation and its effects on the indigenous people
Exclusion of the Endorois from the nomination process
The nomination of the Kenya Lake System as a World Heritage site is a good example of the limited
role that the Endorois community continues to play in decision making related to the Lake Bogoria
National Reserve, despite the ruling of the African Commission on Human and Peoples’ Rights.
The nomination process was a unilateral one that excluded rights holders such as the indigenous
communities who reside within the area or who have been displaced from it. Apparently, the whole
idea was conceived and the process put into motion by the KWS. There is no indication of any
noteworthy consultations regarding the nomination of Lake Bogoria as a World Heritage site
between the KWS (or the Kenyan government for that matter) and the affected communities.50
47 For instance, the changed protection status (which subjects the management of a site to the overall goal of preserving
its ‘outstanding universal value’) may result in additional restrictions on land-use practices and limit the options for
indigenous peoples’ self-determined development. World Heritage designation also often leads to a rapid increase in
tourism, which can have major impacts on indigenous peoples’ lives and cultures.
48 See Okoth 2011; Kavilu 2011.
49 Endorois Welfare Council and Minority Rights Group International 2011.
50 The nomination documentation merely indicates that in October 2009, three months before the nomination was
submitted to UNESCO, a consultative workshop was held for stakeholders of the Greater Lake Elmenteita Conservation
Area to get “updated on status of the Kenya Rift Valley Lakes Systems world heritage nomination” (National Museums
of Kenya and Kenya Wildlife Service 2010, pp. 238, 296).
177
Endorois representative Christine Kandie delivering
a statement to the 50th Ordinary Session of the African
Commission on Human and Peoples’ Rights, October
2011, highlighting the lack of consent from the Endorois
in the listing of Lake Bogoria as a Word Heritage site.
Photo: Minority Rights Group International
In particular, the Endorois Welfare Council, as the representative organization of the Endorois
community, was not consulted. Considering this, it is evident that the concerns of the community,
such as their values, were not adequately taken into account. In fact, the Endorois community is
not even mentioned in the nomination document submitted to UNESCO51 and is not included in the
list of major stakeholders contained in the submitted management plan for Lake Bogoria National
Reserve.52 It thus appears that the Kenyan government opted to pursue the route it took in the early
1970s during the establishment of the Lake Bogoria Game Reserve.
Endorois leaders decried their community’s marginalization in the processes leading to the
World Heritage nomination of Lake Bogoria on several occasions. For instance, in June 2009, the
51 With the exception of a note in the management plan for Lake Bogoria Game Reserve (attached to the nomination
document), which mentions the existence of an Endorois Community Cultural Centre that “has traditional artifacts and
resident traditional dancers’ troupes” (p. 19).
52 Baringo County Council and Koibatek County Council 2007, p. 24.
178
following message from Endorois leader Wilson Kipkazi was published by Minority Rights Group
International (MRG):
“It is with shock and dismay for me and the general members of Endorois Community, to
learn through the press that the Kenya Wildlife Service and National Museums of Kenya
are campaigning to have Lake Bogoria in the Rift valley declared a world heritage site.
As you are aware, Lake Bogoria is under dispute for having been converted by the
Government of Kenya in 1973 into a game reserve without consulting the Endorois
community of their intentions, hence resulting in the eviction of the members of our
community without compensation nor given alternative land to settle. According to us this
is another scandal in the offing since what is happening is similar to what happened in 1973
- the Government is doing things without consulting the community.
The Government has been holding seminars among themselves ignoring the community
and expecting us to embrace what is illegitimate arrangements. We would appreciate
Lake Bogoria becoming an international heritage, but with community consent and also
knowledge of the benefits for all.” 53
In May 2011, the Endorois Welfare Council (on behalf of the Endorois community), together with
over 70 indigenous organizations and NGOs from around the world, submitted a joint statement to
the UN Permanent Forum on Indigenous Issues protesting against the fact that the World Heritage
nominations of the Kenya Lake System and two other sites had been prepared and submitted to
UNESCO without obtaining the free, prior and informed consent of the indigenous peoples concerned.
The indigenous organizations urged the World Heritage Committee to defer these nominations
and to “call on the respective State parties to consult and collaborate with the Indigenous peoples
concerned, in order to ensure that their values and needs are reflected in the nomination documents
and management plans and to obtain their free, prior and informed consent”.54 The statement was
subsequently submitted to both the Bureau of the World Heritage Committee and the World Heritage
Centre, with a request to be brought to the attention of all Committee members. The statement was
also brought to the attention of the Committee’s Advisory Bodies.
In June and August 2009, MRG and CEMIRIDE had already written to UNESCO to inform the
World Heritage Committee about the legal contestation over Lake Bogoria, pitting the Endorois
community on the one hand against the Kenyan government on the other. The letters noted that
the Endorois had not been consulted on the World Heritage nomination and stressed the need for
them to be included in the UNESCO designation process.55 While the Endorois did not receive a
53 See Minority Rights Group International 2009.
54 Endorois Welfare Council et al. 2011.
55 Letters on behalf of the Endorois community dated 19 June 2009 and 3 August 2009, addressed to the Director of the
World Heritage Centre (on file with author). A follow-up letter was sent to the World Heritage Centre on 6 April 2010,
informing UNESCO that the African Commission had ruled in the Endorois’ favour.
179
direct response from UNESCO, the Director of the World Heritage Centre forwarded the
community’s concerns to KWS, which also happened to be the national focal point for UNESCO’s
World Heritage Natural Sites. In dismissing the Endorois’ complaint regarding non-consultation,
KWS submitted that a “Management Plan ha[d] already been developed with the involvement of
the local communities including the Endorois” and that designation of Lake Bogoria as a World
Heritage site would “confer greater involvement of the local communities in its management and
use.”56 The KWS has also claimed, through a Dr. Njogu, that the entire nomination process was
highly consultative and included community sensitization.57 The organization intimates that the
sensitization involved meetings between the KWS and all the stakeholders, the Endorois community
included. However, civil society organizations working with indigenous peoples contest this view.58
The community’s objection to their exclusion from the nomination process has been loudly
proclaimed to the world through statements at international forums and in letters addressed to
UNESCO. Moreover, the KWS, by stating that the Endorois were involved only within the wider
rubric of ‘local communities’, demonstrates that it has not appropriately consulted with or involved
the Endorois community in its nomination processes. No evidence of consultation with the Endorois
has been presented by KWS, nor that such consultation, if any, was ‘informed’.
In spite of the objections of the Endorois community, which were reiterated in an oral statement
of an Observer NGO during the World Heritage Committee’s session on the day before the vote,59
the Committee followed the recommendation of its Advisory Body IUCN and inscribed the “Kenya
Lake System in the Great Rift Valley” on the World Heritage List. The concerns raised by the Endorois
Welfare Council and the other indigenous organizations and NGOs were neither discussed nor
mentioned by the Committee before it adopted its decision. In doing so, the Committee also
disregarded a plea of the UN Permanent Forum on Indigenous Issues “that the UNESCO World
Heritage Committee, and the advisory bodies IUCN, ICOMOS and ICCROM, scrutinize current World
Heritage nominations to ensure they comply with international norms and standards of free, prior and
informed consent”.60 The Kenyan delegation claimed during the World Heritage Committee’s
discussions that the site was co-managed by the KWS and the local communities and promised that
listing would place management in the hands of the local communities.61
Response of the African Commission
The inscription of Lake Bogoria on the World Heritage List without consulting the Endorois was
brought to the attention of the African Commission on Human and Peoples’ Rights at its 50th
56
57
58
59
60
Letter from KWS Director dated 31 August 2009, addressed to MRG and copied to UNESCO (on file with author).
Njoroge and Omanga 2011.
See IWGIA, CEMIRIDE, MRG and Endorois Welfare Council 2011.
UNESCO 2011, p. 150.
UN Permanent Forum on Indigenous Issues 2011, para. 42. The same plea was also made in an oral statement by
UNPFII Representative Kanyinke Sena at the World Heritage Committee’s session on 22 June 2011, two days before
the decision regarding the inscription of the Kenya Lake System was adopted.
61 Information from IWGIA observer Stefan Disko (pers. comm.). Also see UNESCO 2011, p. 162.
180
Ordinary Session in October 2011. As a result, the Commission adopted a resolution in which it
recalled its Endorois Decision and expressed its deep concern that the World Heritage Committee
had inscribed Lake Bogoria National Reserve on the World Heritage List “without obtaining the
free, prior and informed consent of the Endorois through their own representative institutions,
and despite the fact that the Endorois Welfare Council had urged the Committee to defer the
nomination because of the lack of meaningful involvement and consultation with the Endorois”.62 In
the resolution, the Commission:
“Emphasizes that the inscription of Lake Bogoria on the World Heritage List without
involving the Endorois in the decision-making process and without obtaining their free,
prior and informed consent contravenes the African Commission’s Endorois Decision and
constitutes a violation of the Endorois’ right to development under Article 22 of the African
Charter…”
The resolution urges the World Heritage Committee, UNESCO and IUCN to review and revise
their current procedures for evaluating World Heritage nominations and for overseeing the
implementation of the World Heritage Convention, with a view to ensuring that indigenous peoples
are fully involved in these processes and that their rights are respected, protected and fulfilled
in these processes. It also calls on the World Heritage Committee to “consider establishing an
appropriate mechanism through which indigenous peoples can provide advice to the World
Heritage Committee and effectively participate in its decision-making processes”. The Government
of Kenya is urged to ensure the full and effective participation of the Endorois, through their own
representative institutions, in the decision-making regarding the World Heritage site.63
At its 54th Ordinary Session, on 5 November 2013, the African Commission adopted a resolution
in which it expressed its concern regarding “the lack of feedback from the Government of Kenya on
the measures it has taken to implement the Endorois decision”, and called on the Government of
Kenya “to inform the Commission of the measures proposed to implement the Endorois decision,
and more particularly, the concrete steps taken to engage all the players and stakeholders,
including the victims, with a view to giving full effect to the decision.” 64 The African Commission
also sent a letter to the Director of the World Heritage Centre in which it underlined the need for the
World Heritage Committee to “collaborate with the Government of Kenya, UNESCO and IUCN to
ensure the effective participation of the Endorois in the management and decision-making of the
62 ACHPR Res.197 (L)2011 (“Resolution on the protection of indigenous peoples’ rights in the context of the World
Heritage Convention and the designation of Lake Bogoria as a World Heritage site”). See Appendix 1 at the end of this
volume.
63 Similarly, the World Conservation Congress at its session in Jeju, Republic of Korea (2012) adopted a resolution which
“URGES the Government of Kenya to ensure the full and effective participation of the Endorois in the management and
decision making of the ‘Kenya Lake System’ World Heritage area, through their own representative institutions, and to
ensure the implementation of the African Commission’s Endorois Decision” (Res. 047, Implementation of the United
Nations Declaration on the Rights of Indigenous Peoples in the context of the UNESCO World Heritage Convention).
64 ACHPR Res. 257 (LIV) 2013: Resolution Calling on the Republic of Kenya to Implement the Endorois Decision.
181
‘Kenya Lake System’ World Heritage area through their own representative institutions”.65 The
World Heritage Centre responded to this letter by saying that it was “discussing with IUCN, the
advisory body concerned, on the possibility to address the issue through the State of Conservation
(SoC) processes with the State Party of Kenya”.66
Outstanding Universal Value vis-à-vis indigenous values
The Outstanding Universal Value of the Kenya Lake System as adopted by the World Heritage
Committee does not readily coincide with or reflect the indigenous values of the area. This is
because the processes for nominating the site (including the ‘tentative listing’) were not done in
consultation with the indigenous community. The IUCN evaluators of the nomination, too, failed
to consult with the Endorois during their field visit in October 2010 and neither the Endorois
community nor the landmark ruling of the African Commission are mentioned in IUCN’s Advisory
Body Evaluation.67 As a result, the Statement of Outstanding Universal Value, as drafted by IUCN
and adopted by the World Heritage Committee, only represents the wildlife management and
conservation values as appreciated by the nominating body, the State Party, Kenya, through its
KWS agent. The universality of value of the designated sites is therefore called into question by the
failure of the consultation mechanism used by the Kenyan government and its agencies.
The disparity between the values comes as a result of the fact that, for the KWS (and the World
Heritage Committee), the primary concern seems to be the management and conservation of the
wildlife within the site. However, for the indigenous community, the main concern is on the
conservation of resources for the sustenance of the human population. The conflict between these
two sets of values can clearly be seen in the clash of interests between the two groups: from the
government’s point of view, establishing wildlife conservation areas requires the eviction of the
community members. For their part, the indigenous community members continually resist such
attempts and seek to find ways through which they can mutually co-exist with, as well as exploit,
the wildlife for their benefit.
One real challenge that has beset the conservation efforts within the Kenya Lake System area,
especially in the region occupied by the indigenous community, is this clash of values. It emanates
from the fact that the government’s conservation efforts are not usually customized to take into
account the unique cultural community values found within the areas where the protected areas
are situated. Rather, cultural values may be co-opted at the corporate body’s discretion. This is
because its mandate is national and is supposed to take care of the country’s national or ‘universal’
values and interests, at the expense of individual community values. Consequently, indigenous
65 Letter signed by Commissioner Soyata Maiga, dated 5 November 2013 (on file with author).
66 Response letter from Kishore Rao, Director of the World Heritage Centre dated 3 December 2013 (on file with author).
67 See IUCN 2011, p. 77. According to the Evaluation Report, the field mission only met with representatives of the
National Museum of Kenya, KWS, Kenya Forest Service, Baringo and Koibatek Councils, Soysambu Conservancy,
Ututu Wildlife Conservation Trust, WWF in Nakuru, local Water Users’ Associations, local Conservation Forest
associations and representatives of Nakuru town.
182
community values become compromised as the KWS struggles to put national and international
wildlife conservation and management values in place.
Effects of the World Heritage designation on the Endorois
The World Heritage designation of Lake Bogoria occurred so recently that the effects of the
listing may not yet be fully apparent. However, considering the adopted Statement of Outstanding
Universal Value, it can be speculated that greater efforts will now be geared towards wildlife
management and conservation at the expense of indigenous rights and interests. According to
the OUV Statement, the Committee considers cattle grazing as one of the main threats to the
outstanding universal value of the site: “Surrounded by an area of rapidly growing population, the
property is under considerable threat from surrounding pressures. These threats include… [inter
alia] overgrazing... Management authorities must be vigilant in continuing to address these issues
through effective multi-sector and participatory planning processes.” 68 Unless the outstanding
universal value is redefined so as to put a blend of natural and cultural World Heritage values in
place, it is highly likely that the indigenous community will benefit little from the designation.
One aspect of the nomination that is being emphasized is the likelihood of improved economic
activities from a possible increase in tourism. The KWS has stressed that the community’s economic
well-being is likely to be greatly boosted by the listing. For instance, KWS representative, Dr. James
Njogu, has been quoted as saying that the community “stands to benefit from the lakes’ new found
status as more tourists will visit the sites and provide increased business opportunities”.69 Similar
sentiments were expressed by the KWS Chief Warden for Lake Bogoria National Reserve, Mr.
William Kimosop, who noted that the publicity generated by the endorsement would lead to more
tourists visiting the lakes and that this would spur economic activities in adjacent areas.70
However, whether or not any long-term benefits will be achieved by the indigenous community
is a question for which an answer is predicated on a number of issues. For instance, with the
designation already approved, and depending on how the KWS conducts its marketing of the site,
tourism and other related activities may increase substantially. Increased tourism may be a doubleedged sword for the indigenous community’s economic interests. On the one hand, it may boost
the community’s economic income if the government implements a suitable benefit-sharing strategy
with the community as rights holders. In the absence of such benefit-sharing strategies, however,
communities may lose out economically due to the denial of access to pasture for their livestock
which translates into a weakened herd that cannot fetch optimal prices at the market.
In any case, the World Heritage designation may be detrimental to the community’s economic
interests due to the fact that World Heritage status may require an increased level of protection and
68 Decision 35 COM 8B.6 (2011), para. 3. In the same decision, the Committee also encourages the State Party to
“upgrade the protection of Lake Elementaita through… prohibition of cattle grazing so that it is afforded a similar
standard of protection as the other components of the property” (para. 6).
69 Njoroge and Omanga 2011.
70 Ibid.
183
conservation which, in turn, could lead to the three lakes being upgraded into National Parks.
Notably, IUCN has stated in its Advisory Body Evaluation that “National Park designation for all
three lakes would provide a more desirable level of protection”.71 This kind of development would
sound a death knell for the community’s livelihoods as this would mean they would be banished
from the parks. As a result of such a decision therefore, the economic interests of the community
would become adversely affected, as they were during the years when the government displaced
the Endorois to create the Lake Bogoria Game Reserve.
Critical evaluation, conclusions and recommendations
At the moment, we can but guess what lies in store for the people living within the Kenya Lake
System area in the future. The inscription of the area as a World Heritage site will bring with
it certain challenges whose full effects may simply not be fully fathomable at present. On the
one hand, there is a glimmer of hope that the local people may have an enhanced economic
status given that the site may witness an increase in tourist activities. This comes with increased
foreign exchange earnings for the country. With increased earnings, the local inhabitants should
stand to benefit from such resources through a well-planned benefit-sharing strategy by the
government.
On the other hand, if the government opts to raise the conservation bar within the site so as to
make the lakes National Parks, then the community stands to lose. This is because the people and
their livelihoods would be excluded from the protected areas. Consequent upon this, the people’s
economic prospects would dwindle as their very source of livelihoods would be threatened. This
directly contravenes the decision of the ACHPR in the Endorois case, whereby the Commission
was emphatic that unless development expanded the “capabilities and choices of the Endorois” it
ran counter to the African Charter’s right to development.72
The hopes and expectations of the people within the World Heritage area, including the
Endorois, are presently pervaded by dark clouds of doubt, doubts that emanate from the shroud of
mystery that engulfed the KWS’ nomination processes for the site in question. The bitter memories
of the community’s eviction from the land along the shores of Lake Bogoria to pave the way for the
establishment of the world famous Lake Bogoria Game Reserve between 1973 and 1986 were no
doubt re-awakened by Kenya’s unilateral World Heritage nomination, barely a year after the
Endorois’ legal success in the African Commission. The lack of consultation with the various
stakeholders and rights holders during the nomination and inscription, despite the recent landmark
ruling of the African Commission, bodes ill for such an important international wildlife management
and conservation exercise.
In order for the process to proceed smoothly and with the blessing, particularly, of the Endorois,
there is a need for the full engagement, through dialogue, of everyone who is deemed a stakeholder
71 IUCN 2011, p. 80.
72 ACHPR 2009 (Endorois decision), para 283.
184
or rights holder. While the indigenous community has emphasized this in several communications
sent to UNESCO, the relevant UN agency responsible for this very important process, no effective
action has been taken to date.73
In proceeding to inscribe Kenya’s great lakes as a World Heritage site without first obtaining the
consent of the Endorois, the World Heritage Committee has committed an egregious error.
However, this unsatisfactory outcome must serve as a lesson to UNESCO and the World Heritage
Committee in their future dealings. They need to ensure that indigenous peoples and communities
are fully involved during the nomination and designation processes, in accordance with their rights
under international law, as urged by the African Commission at its 50th session. The entire attendant
processes need to be consultative, transparent and all-inclusive. An important first step in this
direction was taken by the World Heritage Committee at its 35th session in 2011, when it adopted a
decision in which it encourages States Parties to “Involve indigenous peoples and local communities
in decision making, monitoring and evaluation of the state of conservation of the properties and
their Outstanding Universal Value” and to “Respect the rights of indigenous peoples when
nominating, managing and reporting on World Heritage sites in indigenous peoples’ territories”.74
The Kenyan government, through KWS and other state organizations such as KENGEN, must
stop the cavalier manner in which they treat indigenous rights holders. The indigenous communities
must now be engaged as true partners in decision-making processes, and not as the ‘inconsequential
other’ whose needs and interests can be dispensed with at will. In addition, UNESCO and the
World Heritage Committee must find ways to ensure that World Heritage nominations are
consultative processes and not unilateral ones whose pace and content are determined only by the
government, as happened with the Kenya Lake System. The World Heritage Committee may, for
instance, make it a requirement that all future nomination documents are accompanied by
statements of prior informed consent from the affected communities, whether indigenous or not.
With regard to the Kenya Lake System, UNESCO and the World Heritage Committee still have
a very central role to play. Of utmost urgency, they need to insist that the Government of Kenya fully
implement the African Commission’s Endorois decision without further delay, and ensure the
effective participation of the Endorois in the management and decision-making of the Lake Bogoria
World Heritage area, through their own representative institutions. They also need to insist on the
need for suitable mechanisms to be put in place by the Government of Kenya to ensure that the
Endorois community receives appropriate economic benefits from the activities within the World
Heritage area. The Committee should also promote the re-listing of the Kenya Lake System as a
mixed cultural/natural site. The universal wildlife conservation values espoused by the government
73 More recently, the Endorois Welfare Council and some of its partners sent a letter to the World Heritage Centre on 18
November 2013 (on file with author) requesting that UNESCO and IUCN raise the Endorois’ concerns with the World
Heritage Committee in the form of a State of Conservation (SOC) report on the Kenya Lake System. The Centre did
send a response to this letter (with a copy to the Kenyan authorities), saying that they would discuss this possibility
with IUCN. At the same time, the Centre “encourage[d] the Endorois, their representative institutions and the Kenyan
national authorities … for dialogue in order to seek resolution to the situation, including strengthened involvement of
the Endorois through the Endorois’ representative institutions in the management and decision-making processes of
the property”. Letter from the Director of the World Heritage Centre, dated 3 December 2013 (on file with author).
74 Decision 35 COM 12E (2011), para. 15.
185
agency, KWS, could in this way be infused with cultural ones stemming from the indigenous
community. If this were done, then the hard-line positions adopted by both players would thaw
considerably, ensuring that every player in the conservation process is brought on board.

Postscript by the editors
On 16 May 2014 the World Heritage Centre and IUCN submitted a report on the state of conservation
(SOC) of the Kenya Lake System to the World Heritage Committee, noting that the Centre had
been “informed by the African Commission on Human and Peoples’ Rights (ACHPR) about the
lack of free, prior and informed consent from the Endorois community for the inscription of Lake
Bogoria on the World Heritage List, and concerns on the lack of participation of the Endorois in
management and decision making”. The report drew attention to the resolutions of the ACHPR with
regard to the recognition of rights of the Endorois in relation to Lake Bogoria and recommended
that the World Heritage Committee at its 38th Session in Doha, Qatar in June 2014 adopt a decision
“urg[ing] the State Party to respond to the ACHPR regarding these resolutions and to ensure full
and effective participation of the Endorois in the management and decision-making of the property,
and in particular the Lake Bogoria component, through their own representative institutions”.75 The
report also contained a corresponding draft decision which was adopted by the Committee on 18
June 2014 without changes.76
Already before the Committee meeting, on 26 May 2014, representatives of the Endorois Welfare
Council and the various Kenyan Government agencies involved in the management of Lake Bogoria
signed a Memorandum of Understanding (MoU) entitled Kabarnet Declaration on Lake Bogoria
National Reserve as a World Heritage Site which appears to have been facilitated by the intervention
of UNESCO and IUCN through the SOC process. The MoU recognizes in its Preamble the creation
of Lake Bogoria National Reserve and its listing as a World Heritage site. At the same time it recognizes
that “Lake Bogoria is part of the Endorois Community ancestral land” and that “their involvement in the
management is paramount”. It then goes on to establish that Lake Bogoria National Reserve is to be
managed through a Management Committee comprising “Baringo County Government, Endorois
Welfare Council, Kenya Wildlife Service and National Museums of Kenya and any other entity that
shall be deemed relevant”, which would deal among other things with issues relating to the
conservation and management of the reserve as a Ramsar and World Heritage site; revenue allocation
and benefit sharing; and resolution of management conflicts. The MoU explicitly states that “[t]he
Endorois people are formally recognized as a community and any decision making concerning them
must have free, prior and informed consent (FPIC)” and that “Endorois Welfare Council shall be the
officially recognized organization of Endorois community in the management of the Lake Bogoria
National Reserve”. The MoU also affirms that “[c]ommunity sites (e.g. sacred sites) within the Reserve
and its catchment areas will remain accessible to the community…”
75 UNESCO 2014, pp. 112-113.
76 Decision 38 COM 7B.91.
186
This MoU provides a basis for the development of an improved management framework for
Lake Bogoria National Reserve and the recognition of the need to obtain the free, prior and
informed consent of the Endorois in any decision-making concerning them is a highly positive step.
However, the extent to which the new Management Committee will give the Endorois a real voice
and decision-making power in the management of the Reserve, and ensure an equitable sharing
of the benefits arising from the Reserve, remains to be seen.
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properties). Doc. WHC-11/35.COM/20, p. 270 ff.
World Heritage Committee. 2014. Decision 38 COM 7B.91 (Kenya Lake System in the Great Rift Valley). Doc. WHC14/38.COM/16, p. 143 f.
World Wildlife Federation. 2004. Lake Bogoria National Reserve Draft Management Plan, July 2004.
188
189
A World Heritage Site in the Ngorongoro
Conservation Area: Whose World? Whose Heritage?
William Olenasha
Introduction
T
he Ngorongoro Conservation Area (NCA) is a multiple land-use area in the north of Tanzania
that was excised from Serengeti National Park in 1959 as a compromise deal between the
resident Maasai pastoralists and the British colonial administration. While the Maasai pastoralists
were forced to vacate Serengeti National Park following years of campaigning by international
conservation organizations, they were guaranteed the right to continue to use and occupy the
adjacent NCA, where wildlife conservation was to be reconciled with the rights of the Maasai in
a multiple land-use context.1 Specifically, the NCA was conceived as a “special conservation unit,
administered by Government, with the object of conserving water supplies, forest and pasture –
primarily in the interests of man, but with due regard for the preservation of wild animal life”.2 It did
not appear to the Maasai at the time that life in their newly-created home in Ngorongoro would soon
be as restricted as if it were another national park.
1
2
See Shetler 2007, pp. 209 f.; Dowie 2009, p. 24 ff.
Parliament of Tanganyika 1959.
Left: Maasai boy driving a cattle herd through Ngorongoro Crater. Photo: Nicor (CC BY-SA 3.0)
190
The designation of the area as a World Natural Heritage site two decades later in 1979 did not
serve to make life better for the Maasai but, on the contrary, led to fresh conservation standards
being added to the burden of human development. The human rights situation of the resident
pastoralists and hunter-gatherers in the area has deteriorated in parallel with the extra-conservation
standards accorded to their land.
In a 1998 study on Maasai rights in Ngorongoro, law professors Issa Shivji and Wilbert Kapinga
emphasized that:
“The problems and predicament of the Maasai residents in the Area relate to the special,
internationally significant conservation and tourist status accorded to their home. The
Conservation Area is on UNESCO’s World Heritage List and is a Biosphere Reserve. It
is probably the most important tourist attraction, yielding the highest foreign-exchange
income, in the tourism sector. These virtues of their homeland have not necessarily been
a boon to the human rights of the residents… It is with this as a backdrop, that the human
rights of the Maasai residents, both as a community, as individuals and as citizens, have
come under severe stress.” 3
In 2010, another conservation standard was added to the area when the NCA was inscribed on
the World Heritage List as a cultural site on account of its rich historical, palaeontological and
archaeological characteristics. While this extra conservation ‘medal’ may work to draw additional
tourists to see rock paintings at Nasera Rock and to hear stories of our ancestors who once lived
a million years ago in Olduvai Gorge, it also means an extra burden for pastoralists who, once
again, have to observe additional restrictions on their activities in their lands. Like the original
World Heritage designation, the inscription as a cultural site was done without the free, prior
and informed consent of the local communities, in contravention of the requirements stated in
regional and international human rights law. Simultaneous recognition of the cultural significance
of the Maasai cultural landscape in Ngorongoro was explicitly rejected by the World Heritage
Committee.4
The World Heritage listings have led to a rearrangement of management priorities and have
undermined the multiple land-use philosophy of the Conservation Area at the expense of the
Maasai residents. While this has clearly not helped to address the complexity of issues in
Ngorongoro in a balanced and sustainable manner, factors such as human population growth,5 wild
3
4
5
Shivji and Kapinga 1998, p. 5.
ICOMOS 2010.
Since the World Heritage inscription in 1979, the human population of the NCA has risen from around 20,000 to over
80,000. It is important to note, however, that in spite of this population increase, the number of cattle has remained
more or less the same, resulting in a substantial decrease in livestock per capita (UNESCO and IUCN 2009, p. 11).
A WORLD HERITAGE SITE IN THE NGORONGORO CONSERVATION AREA: WHOSE WORLD? WHOSE HERITAGE?
191
Map 1: Map of the Ngorongoro Conservation Area. Adapted from maps contained in the 2010
World Heritage nomination file
animal numbers6 and the huge increase in tourists7 are imposing serious management challenges
on the conservation area. The involvement and participation of local people in finding workable
solutions to these challenges has been and continues to be totally insufficient.
This article is therefore an account of the Ngorongoro Conservation Area as both a home for
the local people and for wildlife, and as a ‘World Heritage site’. The article begins with a brief
historical account of the area as a home for pastoralists, agro-pastoralists and hunter-gatherers. It
then evaluates the situation of the indigenous people following the inscription of the area on the
World Heritage List, detailing their level of participation in different decision-making processes.
Finally, a few recommendations are given as to what could be a feasible solution to the present
6
7
The NCA is home to a population of some 25,000 large animals and also supports one of the largest animal migrations
on earth, including well over 1 million wildebeest, 72,000 zebras and 350,000 Thompson and Grant gazelles. Wildebeest
numbers expanded from approximately 240,000 to 1,600,000 following the creation of the NCA, due to the removal of
Maasai cattle from the Serengeti and the eradication of rinderpest. The huge increase in wildebeest numbers has brought
serious problems for the pastoralists, as wildebeest carry a virus which transmits a disease that kills cattle, and less
grazing is available for Maasai cattle in the dry season (McCabe 2002, p. 69f.; Homewood and Rodgers 1991).
Since the designation of the NCA as a World Heritage site in 1979, visitor numbers have risen steadily, from about
20,000 per year in 1979 to more than 500,000 in 2008 (UNESCO and IUCN 2007, p. 12 and 2009, p. 13).
192
problems, complexities and challenges in the NCA. A central question will be whose world and
whose heritage it is that matters.
The peoples of the area
The history of indigenous peoples in the area now covered by the Ngorongoro Conservation Area
predates the modern era. The interaction between people and wildlife has been ongoing for thousands
of years. From palaeontological and archaeological discoveries, it is believed that pre-human
hominids lived in the area at least 3.5 million years ago.8 The first peoples to inhabit the area were
hunter-gatherers, probably ancestors of the present-day Hadza who live in the Mangola area of the
NCA. Peoples following a pastoral lifestyle are very recent occupiers of the area but there is concrete
evidence to suggest that they have been there for at least 2,000 years.9 According to one source, a
rough date of 2,000-2,500 years ago seems to be appropriate for the emergence of pastoralism in
Ngorongoro.10 The Barbaig (Datog) are said to have inhabited the Ngorongoro Crater Highlands by
1000-1500 AD.11 The long occupation by the Datog is even acknowledged by the Maasai, who still
refer to Ngorongoro Highlands as the ‘Oldoinyo Laltatua’ (the Mountain of the Datog). The Maasai are
more recent occupiers, having moved into the area around 1830-1850, displacing the Datog.
As a home for pastoralists, the NCA must be discussed in connection with Serengeti National Park.
Both these areas used to form part of a wider landscape within which pastoralism thrived. The plains in
the Serengeti and highlands in Ngorongoro collectively provided a perfect environment for practicing
pastoralism, balancing the potential of each landscape at different seasons of the year. Maasai
pastoralists would graze in the dry season in the Western Serengeti but retreat to the highlands and low
grass plains during the rainy season, and especially during the calving of the wildebeest. The Western
Serengeti, and especially the area near Moru Kopjes, provided a good grazing environment in the dry
season with the availability of permanent rivers and springs. This was the livelihood of Maasai pastoralists
in Ngorongoro before an agreement to alter this arrangement was arrived at in 1958.
The Anglo-Maasai Agreement to vacate the Serengeti in 1958
The process which saw the eventual eviction of the Maasai from the Serengeti began with the creation of
Serengeti National Park in 1940.12 When Serengeti National Park was created, certain restrictions were
imposed on human activities but they did not affect the customary land rights of the Maasai significantly.
While hunting was prohibited and entry by persons not ordinarily resident in the Park was restricted, the
8
9
10
11
12
Homewood and Rodgers 1991, p. 34.
Ibid., p. 33-34.
Ibid., p. 57.
Ibid., p. 59.
Under the Game Ordinance of 1940.
193
Maasai pastoralists’ rights to grazing, cultivation and residence were not touched.13 However, despite
the recognition of these rights by the subsequent National Parks Act,14 pressure mounted from different
angles15 to restrict human activities in Serengeti National Park. At the beginning of the 1950s, efforts
by the Trustees of Serengeti National Park to persuade pastoralists to vacate the Park met with stiff
resistance as people did not want to relinquish their critical grazing and water sources in the Park.
The colonial government itself was divided as to whether the Maasai should leave the Park or
not. For some officers, the Maasai were not destructive to the Park as they did not farm or hunt.
Others felt that the presence of the Maasai was important for tourism purposes in the Park. The
latter, it appears, considered that the Maasai should only be allowed to live in the Park as long as
international visitors wanted to view them alongside the wildlife. The Governor of Tanganyika
espoused this position and is recorded as saying that, for the Maasai to remain in the Serengeti,
they had to be prepared to become a “museum exhibit, living in a kind of human national park”.16
Similarly, the Commissioner of the Northern Province wanted the Maasai in Ngorongoro badly
since “they are the most interesting feature of the crater for tourists to photograph”.17 After a long
debate between the Maasai and the functionaries of the colonial government at different levels, it
was finally agreed that the bigger Serengeti-Ngorongoro area would be divided into two parts.
While the Serengeti would be kept for exclusive wildlife protection, Ngorongoro would be excised
from the National Park and developed in the interests of both nature conservation and the people
who lived there. The agreement was made on 21 April 1958 between 12 representatives of the
Maasai and the representatives of the British colonial government. In this agreement, the Maasai
renounced their claims and rights to Serengeti National Park in exchange for a solemn pledge by
the government that they would be “permitted to continue to follow or modify their traditional way of
life subject only to close control of hunting” in the Ngorongoro Conservation Area.18
Under this agreement, the Maasai were expected to have moved out of Serengeti National
Park by 31 December 1959 and in the main they had moved by the deadline. Some force was used
against those who remained past the deadline, and all were considered gone by the end of 1960.19
It is the practice in literature today to regard the occasion a negotiated settlement between the Maasai
and the British, and a relocation that was consented to by the Maasai. However it is important to note
the context of the negotiations and the fact that the Maasai did not have many options at their disposal
when pitted against the will of the strong colonial administrators supported by a sustained international
conservation campaign that wanted the Serengeti free of people. The fact that it took almost eight
13 Shivji and Kapinga 1998, pp. 7-8.
14 No. 7 of 1948.
15 Especially from the wildlife lobby in Europe and Africa, such as IUCN, the Wildlife Societies of Kenya and Tanganyika,
the Fauna Preservation Society, the Frankfurt Zoological Society, the Nature Conservancy, etc.
16 Quoted in Shetler 2007, p. 208.
17 Quoted in Shetler 2007, p. 208.
18 Tanganyika Government Paper No. 5 of 1958: Proposals for Reconstituting the Serengeti National Park. Quoted in
Shivji and Kapinga 1998, p. 9.
19 According to the late Lazaro Moringe Parkipuny, physical force was only used to remove people who did not move by
the agreed deadline. By some accounts, the people were only completely out of the Serengeti by 1960 (Shetler 2007,
p. 210).
194
years for any settlement to be recorded stands as testimony to the resistance that the indigenous
people put up against being removed from their land. In the end, they did not have much choice, they
had to sign the agreement because otherwise they risked losing everything, they risked being kicked
out of the Serengeti in exchange for nothing or for some token financial compensation. In any case
the terms of the compromise agreement were unbalanced, considering that the Maasai had to leave
the rich resources in Moru Kopjes and the central Serengeti Plains in exchange for limited pastoral
resources in the Ngorongoro Highlands and, even there, they were not completely free from
restrictions. For the Maasai, this meant relinquishing a very important part of their pastoral resources,
which had serious effects on the pastoralist grazing rhythm.
New lives in Ngorongoro
Vacating Serengeti National Park meant that the Maasai pastoralists were living in a much smaller
area in the Ngorongoro Conservation Area, and had lost critical pastures and water sources in
the Serengeti. In anticipation of this, and in compensation for their lost access to the Serengeti,
the colonial government promised rights and services within the Ngorongoro Conservation Area,
including water and veterinary services. Although this promise was not captured in the written
version of the agreement, it is clear from available literature and from various pronouncements of
officers of the colonial government.20
A 1959 speech of the Governor of Tanganyika to the Maasai Federal Council is often cited as
the most authoritative when it comes to said compensation schemes:
“Another matter which closely concerns the Masai is the new scheme for the protection of
the Ngorongoro Crater. I should like to make it clear to you all that it is the intention of the
Government to develop the Crater in the interests of the people who use it. At the same
time the Government intends to protect the game animals of the area, but should there
be any conflict between the interests of the game and the human inhabitants, those of
the latter must take precedence. The Government is ready to start work on increasing the
waters and improving the grazing ranges of the Crater and the country around it; for your
part you must take care to fulfil the agreements into which you have entered to keep the
countryside in good heart. You must not destroy the forests, nor may you graze your cattle
in areas which have been closed under any controlled grazing scheme; at the same time
you must be certain to follow veterinary instructions designed to prevent disease.” 21
The above proclamation of the Governor formed the basis of the first management plan for the NCA,
the 1960 Management Plan, which sought to integrate the development needs of the Maasai and
20 Homewood and Rodgers 1991, p. 71; Parkipuny 1991, p. 22; Shivji and Kapinga 1998, pp. 9-10. For the written version
of the agreement, see Shivji and Kapinga 1998, p. 74.
21 Quoted in Homewood and Rodgers 1991, p. 72 (emphasis added).
195
the requirements of conservation. In what looks like a departure from the agreement of 1958, the
Governor’s proclamation introduced a very important caveat, that pastoralists also had to respect
environmental laws and regulations. If these restrictions had been discussed at the time of the
negotiations, they would have certainly made the negotiations between the colonial government and
pastoralists difficult, but such discussions are absent from the record. This U-turn had a significant
and lasting impact on the character of the NCA. While pastoralists and other resident communities
could still live in the area, they could only do so if they did not interfere in any significant way with the
conservation of wild animals and the environment. It is not surprising, therefore, that when a law was
passed to govern Ngorongoro in 1959, the long title to the law was purely about conservation:
“An ordinance to control entry into and residence within the Ngorongoro Crater Highlands
Area, to make provision for the conservation and development of natural resources therein
and for purposes connected therewith.” 22
As will become evident in the coming pages, the conflict between conservation and human
development characterises the better part of the 50-year history of the Conservation Area and,
indeed, is even threatening the very existence of the multiple land-use concept. In fact, it can be
said that this land-use concept has failed in Ngorongoro.
Designation of Ngorongoro as a World Heritage site
The history and present situation of Ngorongoro cannot be understood without reference to the
international status that has been accorded to it by being designated a UNESCO World Heritage
site and a UNESCO biosphere reserve.
Ngorongoro became a natural World Heritage site in 1979 when it was inscribed on the World
Heritage List under criteria (vii), (viii), (ix) and (x). In 2010, the area was additionally inscribed under
cultural criterion (iv) in recognition of its palaeontological and archaeological significance, thus
becoming a ‘mixed’ site. Although the Government of Tanzania had applied for simultaneous
recognition of the NCA’s significance as a Maasai cultural landscape, this was wholly rejected by
the World Heritage Committee following a negative and highly biased assessment of its advisory
body for cultural sites, ICOMOS.23
The justification for inscription contained in the Statement of Outstanding Universal Value
adopted by the World Heritage Committee in 2010 is reproduced in Box 1 below.
22 The Ngorongoro Conservation Area Act, 1959 (Cap 413).
23 See ICOMOS 2010. In addition to criticizing the low quality of the information on the Maasai cultural landscape provided
by the Tanzanian government in the nomination dossier, ICOMOS found fault with the fact that “pastoralism within the
Conservation area has now been significantly changed into agro-pastoralism through the impact of population growth
and other factors”, that the “largely settled communities now rely for food on agricultural produce as well as on resources
from their animals”, and that the Maasai “have recently begun keeping camels, although this is not traditional”. Hence, the
conclusion was that the ‘Maasai pastoral landscape’ did not satisfy the conditions of integrity and authenticity and that the
Maasai in Ngorongoro were “neither a unique nor an exceptional testimony to… pastoralist traditions”.
196
Criterion (iv): Ngorongoro Conservation Area has yielded an exceptionally long
sequence of crucial evidence related to human evolution and human-environment
dynamics, collectively extending from four million years ago to the beginning of this era,
including physical evidence of the most important benchmarks in human evolutionary
development. Although the interpretation of many of the assemblages of Olduvai Gorge
is still debatable, their extent and density are remarkable. Several of the type fossils in the
hominin lineage come from this site. Furthermore, future research in the property is likely to
reveal much more evidence concerning the rise of anatomically modern humans, modern
behavior and human ecology.
Criterion (vii): The stunning landscape of Ngorongoro Crater combined with its spectacular
concentration of wildlife is one of the greatest natural wonders of the planet. Spectacular
wildebeest numbers (well over 1 million animals) pass through the property as part of the
annual migration of wildebeest across the Serengeti ecosystem and calve in the short
grass plains which straddle the Ngorongoro Conservation Area/Serengeti National Park
boundary. This constitutes a truly superb natural phenomenon.
Criterion (viii): Ngorongoro crater is the largest unbroken caldera in the world. The crater,
together with the Olmoti and Empakaai craters are part of the eastern Rift Valley, whose
volcanism dates back to the late Mesozoic / early Tertiary periods and is famous for its
geology. The property also includes Laetoli and Olduvai Gorge, which contain an important
palaeontological record related to human evolution.
Criterion (ix): The variations in climate, landforms and altitude have resulted in several
overlapping ecosystems and distinct habitats, with short grass plains, highland catchment
forests, savanna woodlands, montane long grass plains and high open moorlands. The
property is part of the Serengeti ecosystem, one of the last intact ecosystems in the world
which harbours large and spectacular animal migrations.
Criterion (x): Ngorongoro Conservation Area is home to a population of some 25,000 large
animals, mostly ungulates, alongside the highest density of mammalian predators in Africa
including the densest known population of lion (estimated 68 in 1987). The property harbours a
range of endangered species, such as the Black Rhino, Wild hunting dog and Golden Cat and
500 species of birds. It also supports one of the largest animal migrations on earth, including
over 1 million wildebeest, 72,000 zebras and c.350,000 Thompson and Grant gazelles.24
Box 1: Justification for inscription of the NCA as a World Heritage site
24 Statement of Outstanding Universal Value, in World Heritage Committee Decision 34COM 8B.13 (2010). A WORLD HERITAGE SITE IN THE NGORONGORO CONSERVATION AREA: WHOSE WORLD? WHOSE HERITAGE?
197
Zebras and wildebeest in Ngorongoro Crater. The NCA supports one of the largest annual animal migrations
on earth, including well over 1 million wildebeest. Photo: Philip Sheldrake (CC BY-SA 2.0)
The inscription of the NCA as a World Heritage site under such a diversity of natural and cultural
criteria makes the area very special and it stands out as one of the few ‘mixed’ World Heritage areas in
the world. However, being a World Heritage site does not come without a price; it usually means that
stricter standards of conservation and care must be put in place with a view to maintaining this status. For
a multiple land-use area such as the NCA, where people are supposed to be a part of the conservation
equation, it means that the people’s development and livelihoods must be carried out with the World
Heritage site status in mind. More restrictions have therefore been imposed on human activities in the
conservation area, justified on the grounds of it being a World Heritage site. In particular, human activities
have been restricted so that no major alteration to the ‘naturalness’ of the area will occur. Moreover, there
are clear indications that the designation as a cultural World Heritage site in 2010 will lead to further
restrictions (discussed below). This is problematic because the additional conservation status of ‘World
Heritage site’ and the corresponding degrees of care and resulting restrictions were not contemplated
when the NCA was created as a multiple land-use area in 1959.
To make things worse, the resident population were not consulted in any way in the processes
leading to the World Heritage inscriptions, either in 1979 or in 2010. Perhaps in both cases, the lack
of involvement was deliberate as the government knew that the residents would have strongly
resisted the inscriptions since, for them, agreeing would have amounted to welcoming new
restrictions on the pastoral and human activities in the Conservation Area.
198
The lack of consultation with the Maasai is particularly striking in the case of the 2010
nomination, which included a bid for the living culture of the Maasai to be recognized as an integral
part of the NCA’s outstanding universal value (albeit a very half-hearted bid, as also observed by
IUCN in its evaluation of the proposal: “The nomination document notes the interaction of the
Maasai with the landscape of Ngorongoro, but this appears to be very much a secondary
consideration, relative to the palaeontological sites related to human evolution.”25) The lack of
involvement of the Maasai in the preparation of the nomination had significant effects on the quality
and accuracy of the sections on the culture and role of the Maasai. Overall, these sections are
marked by misrepresentations and omissions, a fact that may well have affected the outcome of
the World Heritage Committee’s decision. ICOMOS lamented in its evaluation that: “Details on
history are only provided in the nomination dossier for the archaeological sites – no material is
provided for the Maasai pastoral landscape or on the history of the Ngorongoro Conservation
Area”, that “No information is provided on the organization of grazing grounds, on the traditional or
more modern grazing arrangements, or on how numbers of livestock are managed”, and that “no
substantial details or justification has been put forward to show that a robust pastoral system still
exists or indeed is fostered”.26 Had the Maasai been effectively involved in the elaboration of the
proposal, this important information could have easily been included.
While the inscription in 1979 was done at a time when the rights of indigenous peoples were
only just beginning to be recognized in international law, and consulting indigenous peoples was
not a matter of legal obligation for international organizations like UNESCO, the inscription in 2010
was done three years after the United Nations had adopted the UN Declaration on the Rights of
Indigenous Peoples (UNDRIP). This Declaration requires, among other things, that governments
and international organizations involve indigenous peoples in decision-making processes on
issues that affect their lives. The African Commission on Human and Peoples’ Rights (ACHPR) has
recently passed an important resolution in which it recalls the UNDRIP and objects to the 2011
inscription of Lake Bogoria in Kenya on the World Heritage List without the involvement of the
indigenous peoples of the area. In this resolution, the African Commission:
“Not[es] with concern that there are numerous World Heritage sites in Africa that have
been inscribed without the free, prior and informed consent of the indigenous peoples in
whose territories they are located and whose management frameworks are not consistent
with the principles of the UN Declaration on the Rights of Indigenous Peoples; … [and]
Emphasizes that the inscription of Lake Bogoria on the World Heritage List without
involving the Endorois in the decision-making process and without obtaining their free,
prior and informed consent... constitutes a violation of the Endorois’ right to development
under Article 22 of the African Charter [on Human and Peoples’ Rights]” 27
25 IUCN 2010, p. 189.
26 ICOMOS 2010, pp. 65, 68.
27 Resolution on the Protection of Indigenous Peoples’ Rights in the Context of the World Heritage Convention and the
Designation of Lake Bogoria as a World Heritage Site, adopted on 5 November 2011.
199
Undoubtedly, these same concerns also apply to the World Heritage designations of the Ngorongoro
Conservation Area. In the case of the listing as a cultural site in 2010, the lack of involvement of the
Maasai in the nomination process and the absence of their free, prior and informed consent was even
noted by IUCN in its technical evaluation of the nomination,28 however, this was clearly not seen as a
concern by the World Heritage Committee and ICOMOS and had no effect on the Committee’s decision.
The potential impacts of a failure to appropriately involve indigenous peoples in inscription
processes are significant, as Stefan Disko underscores:
“the justification for inscription... affects management priorities and frameworks, and if the
indigenous peoples’ own values are not properly taken into account, this can have major
implications for them… For example, if a site is inscribed and protected as a natural site,
without recognizing the existence and role of the indigenous inhabitants, this can lead to
all kinds of restrictions on their land-use practices and undermine their ways of life. It can
lead to a loss of control over their lands and can have significant consequences for their
ability to maintain and strengthen their cultures and traditions and develop their societies in
accordance with their own aspirations and needs.” 29
The new inscription of the NCA as a cultural World Heritage site without the involvement and
participation of the local indigenous people, and without due consideration of their cultural values
and priorities, can have a range of adverse impacts on their livelihoods.
Impacts of the World Heritage designation on the Maasai
The inscription of Ngorongoro on the World Heritage List, which - as described - occurred without
the appropriate consultation, involvement or participation of the local people either in 1979 or
2010, is having real and significant impacts on the enjoyment of rights for the people living in the
Conservation Area. The following are just some of the impacts:
Limitation of grazing resources
The worst impact to be felt so far by residents as a result of their lands being inscribed on the
World Heritage List is the reduction in grazing resources that they are allowed to use. In the name
28 IUCN 2010, p. 189: “Reviewers noted that there is little or no information presented in the nomination regarding
consultation with the Maasai as key stakeholder in Ngorongoro. It is suggested important to confirm that the nomination
was prepared with free prior and informed consent from the Maasai.” Additionally, in a 2009 report of a UNESCO/IUCN
monitoring mission to Ngorongoro it was noted that a “re-nomination under cultural criteria… was submitted by the State
Party on 1 February 2009 and will be reviewed by the Committee at its 34th session in 2010. The mission was surprised
to learn that the representatives of the Maasai were not aware of this nomination.” (UNESCO and IUCN 2009, p. 19)
29 Disko 2010, p. 169.
200
of conservation, access to grazing resources has gradually been decreased over time. Critical
resources have been taken and still more may be taken yet. Some of the most significant incidences
of alienation of pastoralists’ resources and limitations of grazing rights are:
Restrictions on accessing Ngorongoro Crater
Ngorongoro Crater has traditionally been an important refuge for the pastoralists who live near
it. The crater is the only source of salt for the cattle of pastoralists who live near the crater rim.
It is also an important source of water in the dry season. Pastoralists were living in the crater
until they were removed in 1975. Due to their prior residence there, pastoralists have enjoyed
grazing rights even though, over time, restrictions have been imposed to control the number of
cattle for environmental reasons. In recent years, the Ngorongoro Conservation Area Authority
(NCAA), the management and governing body of the NCA, has been offering alternative sources
of salt by providing salt from Lake Babati in grazing areas outside the crater; however, this is a
practice which has proved costly and unsustainable. UNESCO and IUCN have recently initiated
moves “to limit or remove cattle grazing in the crater” (supposedly to avoid soil erosion in the
crater), in total disregard of the importance of the crater for pastoral livelihoods and the rights that
pastoralists have enjoyed traditionally.30 There is no explanation as to why a few hundred head
of cattle accessing the crater periodically should be more harmful to it than the thousands of wild
animals who live there permanently.
New threats: restrictions in Olduvai Gorge and Nasera Rock
The recent inscription of the NCA as a cultural World Heritage site in recognition of its archaeological
and palaeontological significance appears to mean that further restrictions must be imposed on the
use of land and other resources by pastoralists. The fact that pastoralists were not consulted when
making the decision will have a strong bearing on their acceptance of any new restrictions. It would
have made a considerable difference if they had been consulted since they are the ones who are
best placed to know the land-use patterns of their grazing areas. Besides, they are the ones who
stand to be affected by any further restrictions imposed on grazing.
The Statement of Outstanding Universal Value adopted by the World Heritage Committee
when it inscribed the NCA as a cultural site makes it clear that the Committee considers the land
use by the Maasai pastoralists as a threat not only to the natural but also to the cultural values of
the NCA:
“Further growth of the Maasai population and the number of cattle should remain within the
capacity of the property, and increasing sedentarisation, local overgrazing and agricultural
30 UNESCO and IUCN 2007.
201
encroachment are threats to both the natural and cultural values of the property… The
property encompasses not only the known archaeological remains but also areas of
high archaeo-anthropological potential where related finds might be made. However the
integrity of specific paleo-archaeological attributes and the overall sensitive landscape are
to an extent under threat and thus vulnerable due to the lack of enforcement of protection
arrangements related to grazing regimes…” 31
In order to mitigate these threats, the World Heritage Committee proposed the development of a
pastoralism strategy for the NCA, not appreciating the fact that pastoralists in Ngorongoro have,
over the years, developed workable strategies by which to best utilise the available resources
without any significant impacts on the environment.32
Following the inscription of the NCA under cultural criteria, UNESCO and ICOMOS undertook
a reactive monitoring mission to the area to assess the state of the historical, archaeological and
palaeontological sites. As can easily be seen from the report of this mission, they did not meet with
representatives of the Maasai during their visit.33 They claimed after their visit that Olduvai Gorge
had been overgrazed and issued recommendations that measures should be taken to arrest this,
which read in part:
“Mitigate and limit the impacts of livestock at the Olduvai Gorge through a renewed
participatory approach in collaboration with the pastoral communities…” 34
While it may seem a positive thing to recommend consulting pastoralists with regard to any intention
to limit the impacts of livestock on the Gorge, it would have made more sense if they had been
consulted before the area was inscribed for cultural values to begin with.
Olduvai Gorge provides important riverine grazing areas and water during the dry season and
the beginning of the rainy season. The gorge lies between the highlands and the low grasses of the
Serengeti and provides palatable grass for goats and sheep, a mainstay of many pastoralists who
are now almost entirely dependent on these animals for their survival. The gorge also contains the
highly nutritious, salty grass species known in Maasai as erikaru and embokui, which are not easily
available in the highlands. According to traditional leader Francis Ole Siapa, who lived and grazed
his livestock in the area for many years, no other place in the NCA can match Olduvai Gorge in
terms of its diversity of pastoral resources. According to him, the gorge is always the first place to
get the critical early rains in November/December and hence the first rescue for weak animals after
a long dry season.35 Another traditional leader, Godfrey Lelya, underscored the importance of the
31 Decision 34COM 8B.13 (2010), para. 4.
32 Ibid., para. 7. The proposal to develop a pastoralism strategy was based on recommendations by ICOMOS in its
Advisory Body Evaluation. It was reiterated by the World Heritage Committee in 2011 and 2012, as well as by the
UNESCO/ICOMOS Reactive Monitoring Mission in 2011.
33 For the itinerary and programme of the monitoring mission, see UNESCO and ICOMOS 2011, p. 53.
34 UNESCO and ICOMOS 2011.
35 Personal Communication, 3rd October 2013.
202
gorge for pastoralists by saying that it is not only a reserve grazing area for cattle when the
wildebeest have migrated to other areas but also a major source of water for pastoralists during the
dry season because of the wells dug along the entire bed of the Olduvai River.36 Any limitations on
grazing in this area would cause further disruption of the grazing rhythm and further reduce options
available to pastoralists in the NCA. While UNESCO is calling for further measures to limit grazing
activities in the gorge, pastoralists already face restrictions placed on their grazing in the gorge by
the government.
UNESCO and ICOMOS have also called for control of pastoralists’ activities at Nasera Rock.37
The 2011 reactive monitoring mission was of the opinion that pastoralists’ activities were having
impacts on the rock and should therefore be restricted. However, no evidence was given to show
that the effects were actually caused by livestock. Wild animals do frequent the area as well and,
very recently, tourists were regularly camping near the rock. In any case, what is absent from the
monitoring mission’s report is a more realistic danger to the Nasera Rock and its immediate
surroundings, namely a major road that is currently being constructed from the Ngorongoro
Conservation Area to Loliondo and which will have much more far reaching consequences than
pastoral activities which have been going on for generations.
Cultivation
Cultivation was at the heart of land-use conflict in the NCA even before the area was made a multiple
land-use area. It is believed that cultivation has been practiced in the Ngorongoro Highlands for
over a million years. The history of cultivation in the area is complex but, for our purposes, it is
sufficient to simply say that cultivation has been present for a long time.
When Ngorongoro was made an independent conservation area in 1959, cultivation was one
of the activities that the Maasai were allowed to continue to practice. However, owing to concerns
about a perceived deterioration of the environment in the NCA, cultivation was prohibited and
phased out in 1975 through amendments to the Ngorongoro Conservation Area Act. The decline
of the pastoral economy and challenges to food security for the Maasai prompted the government
to temporarily lift the ban on cultivation in 1992 while measures were worked out to find solutions
to these problems.38 To address these challenges, the NCAA partnered with the Danish International
Development Agency, DANIDA, and local residents to undertake a major pastoralism improvement
project which focused on restocking destitute communities and building the necessary livestock
infrastructure (water, health) capable of sustaining a pastoral economy.39 While significant
improvements were noticed during the eleven-year-life of the project (1998-2009), it proved difficult
to sustain and poverty ensued in the following years.
36
37
38
39
Personal Communication, 3rd October 2013.
UNESCO and ICOMOS 2011, p. 6.
Olenasha 2006.
Ereto, Ngorongoro Pastoralist Project. For more information, see http://www.ereto-npp.org/.
203
During the same period, in 2007 and 2008, the UNESCO World Heritage Centre and IUCN
conducted two reactive monitoring missions to Ngorongoro to assess the state of conservation of
the NCA.40 They considered that cultivation was widespread and negatively impacting on the
integrity of the World Heritage property. For instance, the December 2008 mission noted in its
report:
“[T]here has been an increasing area of the NCA that is used for subsistence agriculture…
While cultivation is still regarded as an illegal activity in the property, the GMP [General
Management Plan] foresees no interventions to curb it or manage it. This means that
while it is officially prohibited, cultivation is in reality tolerated without restrictions in the
development zone, without any measures in place to manage these pressures. […] On
the basis of the information gathered during the mission, the mission concludes that the
Outstanding Universal Value of the Property is increasingly threatened by the impact of
resident human populations and unsustainable land use practices linked to subsistence
agriculture...” 41
The mission stated in strong terms that the issue needed to be addressed urgently and current
degradation patterns stopped in order to avoid an eventual loss of the NCA’s Outstanding Universal
Value. Noting in passing that the Maasai community had “argued” in a document submitted to the
mission team that subsistence agriculture was an absolute necessity for the survival of people in
the area, the mission recommended that a “dialogue should be started between NCAA, Maasai
community leaders and other stakeholders to develop a joint strategy”.42
In May 2009, when the Tanzanian Parliamentary Committee on Land and Natural Resources
and Environment visited Ngorongoro, the Board of the NCAA, through its chairperson Pius Msekwa,
alerted the Committee to the fact that UNESCO had threatened to withdraw Ngorongoro from the
World Heritage List because of perceived threats to its integrity caused by cultivation and other
problems in the area.43 After visiting a few areas carefully selected for their intensity of cultivation,
the Committee decided that the ban on cultivation had to be re-imposed. The reasons for this were
not difficult to understand. The Deputy Minister for Tourism and Natural Resources at the time,
40 UNESCO and IUCN 2007; UNESCO and IUCN 2008.
41 UNESCO and IUCN 2008, pp. 11 and 22.
42 Ibid. For the document prepared by the Maasai community, see www.tnrf.org/files/E-INFO-UNESCO-IUCN_
Ngorongoro_Residents_Statement_dec_2008.pdf.
43 Mr. Msekwa presented the Committee with a memo (on file with the author) which the NCAA had submitted to the
Minister of Natural Resources and Tourism and which reads in part: “...the permission that the Government gave
residents to continue subsistence cultivation is very pleasing to the residents and has brought calm and tranquillity to
them. However, because of the strong position of international stakeholders, I am obliged to caution the Government
as follows: That the decision to allow cultivation to continue in NCA is opposed strongly by international stakeholders
led by UNESCO, together with many other environmentalists/ conservationists such as the World Heritage Centre and
IUCN... [L]ast year the main message of IUCN was… that cultivation and encroachment were among the threats facing
NCA… In short, to continue allowing cultivation in the conservation area could lead to NCA being withdrawn from the
World Heritage List, which could lead to the loss of many tourism-related advantages that come with World Heritage
site status...” (NCAA, undated. Unofficial translation from the Swahili original).
204
Ezekiel Maige, said the financial benefits from being on the UNESCO World Heritage List
outweighed the local benefits of cultivation. In his own words:
“NCA being a World Heritage site and a major tourist allure, generates revenues amounting to
USD 30million annually. Now tell me, can our subsistence farming earn us such amount?” 44
The Deputy Minister seemed sympathetic to the plight of the Maasai, saying that the government
was caught in a difficult situation, trying to balance the food needs of its hungry population in
the NCA while at the same trying to appease UNESCO so that the NCA would not lose its World
Heritage status. Any sympathy from the Deputy Minister did not, however, stop the government
from re-imposing the ban on cultivation later in 2009, although it was careful to place blame on
pressure from UNESCO for the re-introduction of the ban. The words of the then Chairman of the
Parliamentary Committee on Land, Environment and Natural Resources make this clear:
“If UNESCO removes the NCA from the list of the World Heritage sites, no tourists will
come to visit the place. So it is important to comply with their guidelines...” 45
When the media reported that UNESCO was responsible for pressuring the government to take
brutal measures against its people,46 UNESCO was quick to move and deny any involvement. In
a press release written by the Director of the UNESCO Office in Dar es Salaam, the organization
denied that there was any threat to withdraw Ngorongoro from the World Heritage List, noting that:
“For a property to be deleted from the World Heritage List, its Outstanding Universal Value must
be irremediably lost, which is not the case with the Ngorongoro” and that “Ngorongoro is not even
inscribed on the List of World Heritage sites in Danger”. While it admitted that the World Heritage
Committee had expressed concerns about threats to the integrity of the property, including from
cultivation, UNESCO noted that the Committee had urged Tanzania to engage in a dialogue with
the Maasai community and ensure their active participation in decision-making. In closing, the
press release declared that: “UNESCO works closely on various issues related to indigenous
communities and encourages in all its programmes the enhancement of their cultural identity and
living conditions”. 47
While UNESCO thus denied liability for the ban on cultivation, the report of its monitoring
mission the following year was very telling:
“In regard to the banning of cultivation practices within the NCA, the mission noted positive
progress by the State Party; areas/plots previously farmed by the Maasai communities are
no longer under active cultivation and are actually going through a natural rehabilitation
process… Therefore, farming has been deterred through enforcement, awareness
44
45
46
47
Quoted in Ihucha 2009a.
Quoted in Ihucha 2009b.
Ihucha 2010; Peter 2010.
Jensen 2010.
205
programmes among the pastoral communities and the continuous monitoring being
undertaken by the NCAA… The effective removal of agriculture from the NCA is particularly
important in that it has potential to limit possible human population densities and encourages
the expanding resident populations to move outside the conservation area boundaries.
Recommendations:
– Continue monitoring and enforcing the ban on agriculture within the NCA.” 48
The re-imposition of the ban on cultivation was done without providing any alternatives to the
poverty-stricken and food-insecure communities in the NCA. Following the ban, the residents of
the NCA were officially listed in the records of the National Grain Reserve as people permanently
in need of emergency food support. In July 2011 alone, NCAA had to procure 278 tonnes of
maize as relief food for hungry residents.49 A respected elder in Ngorongoro, Francis Ole Siapa,
was quoted by the press as saying, “We are not allowed to engage in any farming activities in
this area. So, famine has been a constant threat to us since 2009 when the government banned
farming in this area”.50 Agnes Sandai, a Special Seats Councillor from Oloirobi ward and an
active member of the Pastoral Council, pleaded for women, urging the authorities to at least
allow them to cultivate potatoes and vegetables, because “people here are not sure of what to
eat tomorrow”.51
The second half of 2012 and much of 2013 witnessed intense struggles by the communities in
the NCA to achieve food security and avoid famine, and also to demand their broader human
rights, which they see as having been denied as a direct result of their living inside a World Heritage
site. In 2012, a coalition of NGOs that support pastoralists made the hunger situation in the NCA
public. In a press release, they highlighted the fact that there was an undeniably serious hunger
situation in Ngorongoro, so severe that children and adults had died of hunger and malnutrition,
and so widespread that a huge majority of the estimated 70,000 residents were facing acute hunger
and starvation. The NGO statement pointed out that:
“Food [in]security and human rights violations are unfortunately also linked to the
international significance that has been attached to Ngorongoro Conservation Area. The
present hunger situation can, in the immediate be attributed to a harsh and hurriedly made
decision by the Government in 2009 to re-impose the ban on cultivation without coming
with an alternative means of livelihood and food security for the local community in the
Conservation Area. International conservation actors such as UNESCO and IUCN cannot
deny culpability in the present hunger situation since they are known to have pressurized
48
49
50
51
UNESCO and ICOMOS 2011, p. 28 (emphasis added).
Juma 2011.
Quoted in Philemon 2011.
Quoted in Philemon 2011.
206
the Government to re-impose the ban on cultivation owing to a perceived deterioration of
the integrity of the Ngorongoro Conservation Area as World Heritage Site.” 52
Threats of eviction
Another pressing issue is the continuous threat of eviction of local residents from the
Ngorongoro Conservation Area. The possible relocation of pastoralists from the conservation
area is something that seems to have gained ground since Ngorongoro was made a World
Natural Heritage site in 1979. To remain a World Natural Heritage site, the NCA must retain the
outstanding natural values for which it was inscribed, which means that people’s development
activities must be kept within limits. When it comes to striking a balance between conservation
and development, one of these has to give and, in conservation areas, it is the people who have
to go!
An intention to evict indigenous peoples from the area has been clear from decisions
taken from time to time by UNESCO and the Government of Tanzania. Just a few years after
the NCA was inscribed on the World Heritage List, the threat of eviction was knocking at the
door. In the 1980s, UNESCO and the Government of Tanzania were openly discussing this
possibility but wanted scientific findings to support any policy. According to Homewood and
Rodgers:
“The management in Ngorongoro Conservation Area... have for decades perceived a
conflict between wildlife values and pastoralist activities. By 1980 the conflict was seen as
severe enough to warrant expulsion of the pastoralists, but the Ngorongoro Conservation
Area Authority needed objective documentation to back up action. UNESCO was to fund
a management plan and we were commissioned to produce background information
on the ecological facts. Our input was expected to be a standard environmental impact
assessment: In what way do pastoralists affect the wildlife? Is this a major problem? If so,
recommend pastoralist relocation.” 53
Homewood and Rodgers found that “pastoralist land use presents no threat to wildlife
populations or the environment in NCA” and instead found that pastoralism actually
complements and reinforces wildlife conservation. They concluded that “there is no justification
on conservation or other grounds for expelling the Maasai”.54 As a result, no relocation of
pastoralists was carried out at the time; however, the threat of eviction never ceased to exist
for the Maasai in the NCA.
52 PINGO’s Forum et al. 2012.
53 Homewood and Rodgers 1991, p. xi (emphasis added).
54 Ibid., pp. 247, 265.
207
Maasai homesteads (‘boma’) in the Ngorongoro Conservation Area. Photo: Dongyi Liu (CC BY-NC-ND 2.0)
In recent years, fears of a possible eviction of pastoralists from the area have grown mostly as
a result of UNESCO’s interventions in the area. The UNESCO/IUCN monitoring mission to
Ngorongoro in 2008 made it clear that it considered human population pressure one of the key
factors threatening the universal values of the property and called strongly on the Government of
Tanzania to take urgent measures:
“The mission team is extremely concerned by the increased numbers of resident
populations and their impact on the natural resources through agriculture and overgrazing
on the integrity of the property. The mission team is of the opinion that these impacts
constitute the most important and growing threat to the Outstanding Universal value of
the property… Populations have increased beyond the carrying capacity of the property…
Therefore the mission considers that the issue of the impact of resident populations
on the values of the property needs to be addressed urgently…” 55
Either in sheer panic or simply to suit some hidden agenda, the government began taking rushed
measures against the residents of the conservation area after receiving this report, including a reintroduction of the ban on cultivation, prohibiting access to the Ngorongoro crater and evicting so-
55 UNESCO and IUCN 2008, pp. 11-12 (emphasis in original).
208
called ‘illegal immigrants’.56 Amid these rushed decisions, panic ensued, with some media outlets
reporting that people were going to be evicted from Ngorongoro.57
The reported threats of eviction received the strongest of condemnations from the local people,
local NGOs and international NGOs, most notably the International Work Group for Indigenous Affairs
(IWGIA) and the International Land Alliance. IWGIA, for one, wrote a letter to UNESCO expressing its
concern and opposition to the threats of eviction and other violations of human rights of the indigenous
people of the Conservation Area.58 UNESCO was swift to deny liability and involvement in any
attempts to evict people from the conservation area. In a letter to the Director of Antiquities of Tanzania,
the organization demanded an explanation of the reported threats of eviction, making it clear that
UNESCO would not support such a move since “as a UN agency [it] fully subscribes to the Declaration
on the Rights of Indigenous Peoples and is against any eviction of indigenous peoples be it from
cultural sites or protected areas”. UNESCO “emphasize[d] that technical issues pertaining to the
conservation of heritage should not be used to justify any decision to evict indigenous peoples”.59
Carrying Capacity Study: In search of scientific evidence to support eviction?
The recommendations of UNESCO’s monitoring missions cast doubt on the above assertions,
however, and play well into the hands of those who would like to evict pastoralists from the NCA.
UNESCO has not only called for an effective removal of agriculture from the NCA in order to
“encourage” residents to move outside the conservation area60 but has, for years, pressured the
Tanzanian government to undertake a study of the human “carrying capacity” of the area. Recent
monitoring missions from UNESCO and IUCN have consistently emphasized that the present
human and livestock numbers are among the factors threatening the integrity of Ngorongoro as a
World Heritage site, a claim that is vigorously contested by the Maasai.61 UNESCO has supported
the conducting of a carrying capacity study to ascertain how real the threat is:
“The Mission team notes and commends the process of undertaking a systematic study of
carrying capacity within the conservation area. It is important that such a study is credible
and, in particular, is undertaken by an objective and competent person/institution. This study
should be based on both social and environmental considerations and should provide the
56 The term ‘illegal immigrants’ is frequently used by the government to refer to NCA residents other than those who were
already present in the NCA when the conservation area was established in 1959 and their descendants. The term is
also applied to people who were paid to re-settle in 1975 who have since returned.
57 See Ihucha 2010; Peter 2010.
58 Letter from IWGIA to UNESCO dated 13 April 2010 (on file with author).
59 Letter from the Director of the World Heritage Centre, dated 21 April 2010 (on file with author).
60 UNESCO and ICOMOS 2011, p. 28.
61 See e.g. the joint statement that was submitted by the indigenous residents of the NCA to the 2008 UNESCO/IUCN
monitoring mission (Ngorongoro Pastoral Council et al. 2008): “There are no signs and no significant ecological
damage to the area from overuse of the areas by the local communities although there has been above 50.000 people
in the area for decades.”
209
Maasai men cultivating land following heavy rain, in Endulen, Ngorongoro Conservation Area. Especially in
times of drought, subsistence agriculture is essential for the survival of people in the area. However cultivation
was prohibited in the NCA in 2009, a decision that has seriously undermined the food security of residents.
Photo: Geoff Sayer/Oxfam
opportunity for adequate and effective input from the Maasai populations, including through
the Maasai Pastoral Council and its Chairman. Based on professional judgement, the Mission
Team assumes that such a study would result in the identification of a carrying capacity figure
significantly less than the current population within the conservation area.” 62
The prospect of a carrying capacity study is causing a great deal of stress among the residents of
the NCA, who fear that the findings of such a study would be used to evict them from the NCA. This
fear appears justified by UNESCO’s own pre-determined conclusion that the carrying capacity has
already been surpassed and that the study would identify a carrying capacity figure which is far less
than the NCA’s current population of 60,000 people. The fear is compounded by a litany of other
threats that resident pastoralists have been receiving from many quarters, including government.
UNESCO recently reported that: “The State Party report notes that the WH property does not have
the capacity to sustain the current Maasai population of 60,000 people and 360,000 cattle”.63
62 UNESCO and IUCN 2007, p. 6 (emphasis added).
63 UNESCO 2006, p. 5. The figure of 360,000 cattle is wrong and has never been reached in the entire history of the NCA.
The highest recorded figure is 200,000 heads of cattle, recorded in 1987.
210
The Government of Tanzania has itself made clear on several occasions that it views eviction
as a potential solution to resolving what it sees as a long existing conflict between people and
wildlife in Ngorongoro. As explained by the 1990 Ad Hoc Ministerial Commission on Ngorongoro:
“The possibility of resettling the NCA’s pastoralists in lightly populated areas, such as
the Loliondo Division of Ngorongoro District or the Simanjiro Plains has been considered
at various times in the past. This approach would help ensure the maintenance of the
NCA’s conservation and archaeological values, and would make the management of the
Area considerably more simple; resettlement would also enable the Maasai to pursue
their development interests free of restrictions. However, the Commission recognised
that resettlement would be a contravention of the assurances which have been given to the
Maasai people, and would lead to resentment, upheaval and human suffering. Resettlement
would also be difficult from a logistical point of view, costly in economic terms, and at risk of
evoking both national and international criticism. Lastly, the areas which are proposed for
resettlement are already experiencing some of the highest rates of immigration in the nation,
and are the focus of considerable controversy over land allocation; and additional and large
influx of people from the Conservation Area could only intensify these conflicts.” 64
In sum, the threat of eviction has been there for many years but the Government of Tanzania fears
the logistical implications of undertaking an eviction of this magnitude, as well as the expected
resistance from the affected people themselves and human rights activists all over the world.
When a UNESCO monitoring mission visited the Pastoral Council and elders of Ngorongoro in
April 2012, pastoralists made it abundantly clear that they were certain that the proposed study on
the carrying capacity would be used as a management tool to evict them from Ngorongoro, not
seeing what other purpose it could serve. And, indeed, the question is: if such a study was carried
out and did conclude that the human population in Ngorongoro exceeds the carrying capacity of the
area, what would happen to the ‘excess’ population?
The 2012 monitoring mission responded to the pastoralists’ concerns by noting in its report that
the idea of a carrying capacity study “has had the unfortunate and unhelpful side effect of
heightening tension between management and pastoralists, by keeping the possibility of involuntary
relocation alive in people’s minds”. The mission therefore recommended “that a study of carrying
capacity should no longer be envisaged as it is impracticable, unnecessary and could lead to
serious conflict with the Maasai pastoralist groups”. However, the mission at the same time
reaffirmed “that the number of livestock almost certainly exceeds the carrying capacity of the areas
set aside for pastoralism (although understandably most Maasai choose to be in denial about it)”
and underlined the importance of “a reduction in the number of people” in the Conservation Area.65
While the mission noted that “the relocation of people out of the NCA can only take place voluntarily,
and certainly bona fide residents need have no fear of the sort of large scale, forcible eviction that
64 Tanzania 1990, p. 15.
65 UNESCO, ICOMOS and IUCN 2012, pp. 23-26.
211
would be needed to bring the pastoral system below carrying capacity”, the mission’s notion of a
‘bona fide resident’ is hardly reassuring to the pastoralists:
“[The pastoral community should be reassured that] while no bona fide residents will be
evicted, those remaining have firstly to respect the legally valid livelihood constraints
peculiar to the NCA, and secondly to accept that because of them the best interests of
the community and the management authority are actually almost identical. The quid pro
quo for those electing to stay, respect the law and collaborate with the NCAA and share
responsibility for sustaining their pastoral way of life, is that the latter will continue to provide
them with all the familiar benefits…” 66
Participation of the residents in management and decision-making
processes
Ngorongoro Conservation Area was created for three objectives, the development of Maasai pastoralists
being one of them. It is only reasonable that the Maasai should be able to participate fully in the
management of the area. Unfortunately, this has not been the case, as their participation in management
and decision-making has not been commensurate with the attention that should be attached to their
development. This has been decried by Maasai representatives and organizations for many years67 and
has recently also begun to be criticized by UNESCO and the World Heritage Committee.68
Management decisions in the area are made at two levels: at the level of the board of directors
and the level of management. At both levels, the participation of indigenous peoples is not legally
guaranteed.
According to the Ngorongoro Conservation Area Act (Section 5), the overall manager of the
affairs of the Conservation Area is the Board of Directors of the NCAA. The law contains no
mechanism to ensure that resident communities can participate in the management of the
Conservation Area through this important body. The Chairperson of the Board is appointed by the
President of Tanzania while the additional 6-11 members of the Board are appointed by the Minister
responsible for Natural Resources and Tourism.69 While representatives of the resident communities
have, at times, been appointed to the Board, this was not due to a legal requirement but simply at
the discretion of the appointing authority. For many years, the Chairperson of Ngorongoro District
Council and the Member of Parliament (MP) from Ngorongoro Constituency have been serving on
the Board as de facto representatives of local communities but no attempts have been undertaken
66 Ibid., pp. 24, 35.
67 See e.g. the statement of the NCA’s indigenous residents submitted to the 2008 UNESCO/IUCN monitoring mission
(Ngorongoro Pastoral Council et al. 2008): “Participation in NCAA decision making bodies of local communities and
local authorities is highly insufficient. People of NCA are not enjoying the same rights as other citizens of Tanzania.”
68 See in particular World Heritage Committee Decision 33COM 7B.9 (2009); UNESCO and IUCN 2009; UNESCO and
ICOMOS 2011.
69 Section 5 of the Ngorongoro Conservation Area Act and section 2 of the fourth schedule to the Act.
212
to make this a legal requirement. With the instigation of the Pastoral Council in 1994, the Chairman
of the Pastoral Council seems to have replaced the Chairperson of the District Council as the de
facto representative of communities. Interestingly, in the most recent re-constitution of the Board in
December 2009, the local MP was dropped. There have been repeated calls from different people
and institutions (governmental and non-governmental) to increase the number of representatives
of the local communities on the Board. The Ad Hoc Ministerial Commission in 1990 recommended
that residents should, as a minimum, be allocated two places on the Board for representatives
chosen by the residents themselves.
At the level of management, where important decisions are taken and implemented, there is
not a single representative of local residents in the top management team. In the present structure
of the NCAA, there are three directors and, below them, are eight divisional managers. Overall, the
total number of local residents who are employed in the conservation area is less than a hundred
out of a total workforce of nearly five hundred persons.70 A precise figure is difficult to establish as
the estimates provided by the conservation authorities tend to overstate the employment of local
residents by counting all Maasai people as local residents, whether they are from the NCA or not.
Confusion also stems from the tendency of the authorities to include temporary casual labour and
short contracts in the definition of employment. Not one local person is currently employed in a
management position. In the past, the excuse for not having community representatives in these
positions was that members of these communities lacked education and the required technical
skills. Today, there are many local residents who would be qualified to fulfil these positions but the
system continues to exclude them from employment.
The Ngorongoro Pastoral Council is so far the only space that can even remotely be said to be
providing for some degree of community participation in the management of the NCA. The Pastoral
Council has played a very large role in the provision of education services to the resident
communities. However, the way it is structured and the powers given to it by law make it incapable
of enabling effective community participation as it cannot pass binding decisions. Moreover, while
the Pastoral Council was initially intended to be an autonomous body of local people contributing
to the management of the NCA, this has not been achieved as the Pastoral Council was set up as
a branch of the NCAA. It is therefore often perceived as an arm of the NCAA rather than an
independent organ safeguarding the interests of local communities.
The idea to create the Pastoral Council was first introduced in a draft management plan
prepared in 1966.71 Concretely, however, the structure of the present Pastoral Council goes back
to proposals made by the Ad Hoc Ministerial Commission on Ngorongoro in 1990. The position of
the Commission was very clear on Ngorongoro:
“It is the Commission’s view that the long-term success of the Conservation Area will
rely upon the active involvement and participation of local communities in all aspects of
70 In 2008, the number of local residents employed was put at 70 out of a total workforce of 420 employees, See
Parliament of the United Republic of Tanzania 2008, p. 8.
71 Tanzania 1990, p. 55.
213
the NCA’s management. In this regard, it is vitally important that residents of the NCA be
provided with a much greater voice in the affairs of the Conservation Area than is the case
at the present time...” 72
The Commission also made recommendations as to how the participation of local communities in
the affairs of the Conservation Area should be achieved in practice. The Commission recommended
the establishment of what it called a ‘local community council’ as a forum for discussion between
the NCAA and residents and a space through which the residents could channel concerns to the
Board of the NCAA. The Commission proposed that the council should be composed of elected
ward councillors for the area, the chairperson from each of the registered villages in the NCA,
additional representatives elected by the communities from among the permanent residents of the
area, and the conservator and senior staff from the NCAA.
When the Ngorongoro Pastoral Council was established, almost all of the recommendations of
the Ad Hoc Ministerial Commission were taken on board. The Pastoral Council has been in
existence informally since 1994 although it was legalised only in 2000.73 The subsidiary legislation
establishing the Pastoral Council also contains a scheduled constitution governing the activities of
the Council. According to this constitution, one of the functions of the Pastoral Council is to advise
the Board of the NCAA on all policies relevant to the implementation of the Pastoral Council’s
constitution.74 The Council is also empowered to plan and implement development projects for the
benefit of local communities.75 However, the decisions of the Pastoral Council must gain the
approval of the Board of the NCAA before they are implemented. The Pastoral Council may also
amend its constitution but, again, only with the approval of the NCAA Board and the Minister
responsible for the Conservation Area.
The composition of the Pastoral Council closely reflects the recommendations that were made
by the Ad Hoc Ministerial Commission on Ngorongoro. The Pastoral Council is composed of all
Councillors in the NCA, the Chairpersons of all registered villages in the NCA, six traditional leaders
(one from each ward), six representatives of women (one from each ward), six representatives of
youth (again one from each ward) and the Conservator of the NCAA.76
While the present configuration of the Pastoral Council is largely in accordance with the
recommendations of the Ad Hoc Ministerial Commission, the fact that the Conservator of the NCAA
is part of the council is problematic because it compromises its independence. When local
communities were consulted on the composition of the local community council, their
recommendation, which was not taken on board, was that the council should be an autonomous
body which is not part of the NCAA and that it should be fully constituted by representatives of the
72 Tanzania 1990, p. 55.
73 Ngorongoro Conservation Area (Establishment of Ngorongoro Pastoral Council) Rules, 2000 (Government Notice No.
234 of 23rd June, 2000). The rules were made under section 24 of the NCA Ordinance.
74 Article 2.03(a) of the Constitution of the Pastoral Council.
75 Section 8(1) of the Rules.
76 Article 5.01 of the Constitution of the Pastoral Council.
214
local communities without involving ex-officio members from the communities, let alone people
from the Conservation Area Authority.77
Benefit-sharing
Benefit-sharing is another important way of ensuring that the local people participate in the affairs
of the conservation area. It has been observed on many occasions by UNESCO and IUCN that
equitable benefit-sharing in the NCA will help to make local residents appreciate the importance
of conserving the natural environment. Accordingly, the World Heritage Committee has repeatedly
requested that the Government of Tanzania take deliberate measures to improve participation
and benefit-sharing in the NCA. For instance, in 2009, the Committee adopted the following
recommendation:
“Requests the State Party to ensure the active participation of resident communities in
decision-making processes and develop benefit-sharing mechanisms to encourage a
sense of ownership of, and responsibility for, the conservation and sustainable use of the
property’s natural resources…” 78
While implementation of this vital recommendation could have been better, it is worth mentioning
that benefit-sharing is an area where some light can be seen at the end of the tunnel. NCAA
receives around 30 million USD a year from tourism. The Ngorongoro Pastoral Council receives a
direct grant from this of approximately 2-3% annually for the development of local communities.79
This amount has been critical in enabling the Pastoral Council to undertake important social
services, especially in the area of education. With this money, the Pastoral Council has been able
to send many residents to schools. For the entire period of its existence, the Pastoral Council has
directly supported the education of around a thousand students in different secondary schools
and colleges.80 Through this support, the Pastoral Council has also been able to construct a
very good secondary school in Ngorongoro, the Embarway Secondary School, and is currently
(2014) completing another secondary school in Nainokanoka. In addition to the direct grant, other
development support is also given through the NCAA’s Department of Community Development.
77 Lazaro Moringe Parkipuny, pers. communication. L. Parkipuny was the Hon Member of Parliament of Ngorongoro
Constituency from 1980 to 1990 and a member of the Ad Hoc Ministerial Commission on Ngorongoro.
78 Decision 33COM 7B.9, para. 7.
79 The exact proportion given is not fixed and varies from year to year. In 2010/2011 the contribution for the direct grant was
1.25 billion Shillings, in 2011/2012 it went slightly up to 1.35 billion Shillings and in 2012/2013 it was 1.4 billion Shillings. In
2013/2014 the direct grant increased suddenly to 2 billion Shillings in response to the serious food shortages that hit the area
and some of the direct grant was used to purchase grain. Jamhuri ya Muungano wa Tanzania, Ofisi ya Waziri Mkuu 2013.
80 In the past, the Pastoral Council used to sponsor students up to Master’s degree level; however, this privilege was
removed by the NCAA Board allegedly to make the bursary available for more students at the lower levels of education.
The Pastoral Council resisted this saying, among other things, that it amounted to interference in their decision-making.
215
Safari vehicles in Ngorongoro Crater. Being a major tourist destination, the NCA attracts more than 500,000
visitors per year, generating revenues of around 30 million USD annually. Only 2-3 percent of that revenue
goes to the local communities. Photo: Paulo Cunha
While the 2-3% direct grant to local people’s development is an attempt to implement benefit-sharing
arrangements, it is clearly not an equitable arrangement, especially considering that the development of
local residents in Ngorongoro is among the three key objectives for which the conservation area was
established. If equity in benefit-sharing is to be realised, then at least 30% of the income of the NCAA
should be set aside for people’s development. This is among the recommendations that local residents
are making towards a new law for the conservation area.81 In December 2012, pastoralist organizations
from the NCA released a joint statement calling on the Government of Tanzania to “repeal and re-enact
Ngorongoro Conservation Area Act, a draconian piece of legislation which denies local community an
opportunity to co-manage the conservation area as well as getting equitable benefits from the income
accrued from tourism”. They urged the government to “make sure that the income accruing from Tourism
is distributed equally amongst the three objectives for which the area was established” and “to make sure
that at least 30% of the income [is] allocated to the Pastoral Council”.82
Recent developments
In the first quarter of 2013, the people of Ngorongoro themselves started a movement in response
to the problems of the NCA that quickly proved too strong for the government to ignore. They began
81 Olenasha 2010.
82 PINGO’s Forum et al. 2012.
216
mounting pressure in April and May threatening to close the main gate to the NCA and Serengeti
National Park if the government did not respond to the situation facing them. This strategy worked
because, however difficult implementing that threat would have been, the government took the
threat seriously and responded quickly.
The Prime Minister of Tanzania, the Honourable Peter Kayanza Pinda, made a quick trip to
Arusha in June to talk to members of the Pastoral Council, select traditional leaders and a few
educated youths. After listening to the voices of the people of Ngorongoro, he ordered an
assessment of income status and food security in Ngorongoro, which was conducted immediately
afterwards in July/August 2013. The assessment, done in close consultation with the Pastoral
Council, revealed that the economic situation of the people of the NCA was shocking. According to
the assessment report, the population of the NCA was 87,851 people. The number of cattle was
found to be 131,509, while goats numbered 163,207 and sheep 166,872. The assessment revealed
that 3% of the population of the NCA owned 80% of all the cattle, leaving only 20% of the cattle in
the hands of the remaining 97%.83 At least 74% of the people of the NCA would be categorised as
poor, very poor or destitute, all categories meaning they face food insecurity. The survey also
revealed a shocking situation in terms of access to and provision of social services, with 73.4% of
the people of the NCA never having seen inside the doors of formal education. Significantly, the
survey admits that poverty in the area is directly related to the status of the area as a conservation
area.84
Following the release of the report, the Prime Minister went to Ngorongoro on 19 September to
speak directly to the people of Ngorongoro. The people hoped at the time that the Prime Minister
would lift the ban on cultivation, as one of his predecessors had done in 1992. However, the Prime
Minister did not do this, instead promising free food for everybody in the area while seeking more
durable solutions. According to press reports, he said:
“There are about 20,000 households in the Ngorongoro Conservation Area, my office
offers to give each household ten sacks of grain (One tonne of maize) every year, free of
charge to supplement food requirements as we work to find other means of sustaining the
population here.” 85
Just as the government is slowly responding to pressure from the local community in Ngorongoro,
there are signs that UNESCO is doing the same. Heightened criticism of UNESCO and other
international conservation players as being the reason behind the re-imposition of the ban on
cultivation and other conservation policies in Ngorongoro so unfavourable to the local communities
83 Jamhuri ya Muungano wa Tanzania, Ofisi ya Waziri Mkuu 2013.
84 “The assessment has revealed several challenges facing the citizens of Ngorongoro Division, including income poverty
resulting from dependence on pastoralism and livestock keeping as the main economic activity in a conservation
area (NCA) where the relevant authority has not taken enough measures to improve and protect the interests of
the residents as required by law [Section 6 of the Ngorongoro Conservation Area Act]”. Jamhuri ya Muungano wa
Tanzania, Ofisi ya Waziri Mkuu 2013 (unofficial translation from the Swahili original by the author).
85 Nkwame 2013.
217
has prompted UNESCO to play some clever diplomacy. Human rights organizations and
pastoralists’ organizations from Tanzania have repeatedly pointed to UNESCO’s responsibilities,
and the representatives of UNESCO who visited Ngorongoro in April 2012 were told very clearly that
UNESCO was part of the problem. When UNESCO met with representatives of local communities
in 2012, it promised that it would organize a workshop to discuss the problems of Ngorongoro
and find a new way forward. UNESCO has fulfilled this promise by initiating a project entitled
“People and Wildlife; Past, Present and Future: Connecting wildlife management to the sustainable
development of communities”. The objectives of this project include reviewing the successes and
challenges of the NCA as a multiple land-use area; developing a relationship of trust and a common
understanding of values, management and benefit-sharing among all stakeholders; and working
towards an equitable balance between the needs and aspirations of the Maasai community
and the goals of ecosystem management, wildlife conservation, tourism and the protection of
archaeological sites. The project intends to review the governance framework and management of
the NCA in order to try to better address the challenges facing the area.86
These objectives closely reflect the objectives for which the conservation area was originally
established, as well as the recent emphasis on the protection of archaeological sites. While it is too
early to pass any verdict on this project, it is good that UNESCO is encouraging changes in the
governance framework of the NCA. However, it is important to note that the response is limited to
this particular site, and nothing appears to have changed in terms of UNESCO’s overall policy
framework for the governance of World Heritage sites. It is questionable as to whether a change in
the governance of the NCA in favour of the local communities will be sustained or effective, or will
be supported by UNESCO over the long-term, when the policies of UNESCO, which plays such a
decisive role in the management of the site, have not changed.
Conclusion and recommendations
It is becoming an increasing challenge to balance the interests of conservation and tourism with
those of human development in the NCA. Reasons for this include, among others, the more than
six-fold increase in the human population in the last 50 years, the rapid increase in tourist numbers,
and increasing conservation activities that place evermore restrictions on human activities.
The future of Ngorongoro as a multiple land-use area is unpredictable. One thing that is certain,
however, is that the current lack of involvement of local people in decision-making processes and
threats of evictions from the area are not part of the winning formula. This is particularly stark
considering the ‘World Heritage’ status of the area. The local communities’ disenfranchisement and
marginalization from decision-making processes begs the questions of whose world and whose
heritage are being safeguarded and protected under this label, and whether the concept of
‘mankind as a whole’ that is embedded in the World Heritage Convention includes the pastoralists
living in the Ngorongoro Conservation Area.
86 UNESCO 2013.
218
There are a number of steps that urgently need to be taken to establish a better balance
between conservation interests and the livelihood needs of the local communities. Key among
these are strengthening the local authority and self-determination of the local communities, and
ensuring that they are able to effectively participate in all decision-making processes relating to the
conservation area. This should include not only decisions relating to the daily management of the
area but also more high-level decisions such as those that are periodically passed by UNESCO
and other international conservation actors. An opportunity exists in the current attempt by
UNESCO to initiate a dialogue to chart out a new governance structure for the conservation area.
A central question in this context must be how to ensure that local communities can fully participate
in the governance and management of the NCA. A prerequisite for this is the repeal of the
Ngorongoro Conservation Area Act, a draconian piece of legislation which denies the local
communities the opportunity to co-manage the conservation area or to equitably access tourism
benefits.
Second, in order to ensure that pastoralists feel that they are full participants in and co-owners
of the heritage in Ngorongoro, renewed attempts should be made to ensure that Maasai cultural
values are officially recognized as part of the outstanding universal value of the site. To this end, a
re-nomination of the site should urgently be developed in collaboration with the pastoralists. This
would also facilitate the establishment of a more balanced management framework that is in line
with the multiple land-use concept. If UNESCO is sincere in championing a better balance between
the needs and aspirations of the Maasai and the interests of conservation then it must lead by
example, by supporting a re-nomination process so that such a balance is achieved at the World
Heritage Convention level.
Third, as part of establishing a better management framework, it is essential that all stakeholders
work towards finding an equitable benefit-sharing arrangement that would scale up the extent to
which the income from tourism contributes to the livelihoods of the local communities, who are
increasingly finding it difficult to live by pastoralism alone.
Fourth, the government should consider setting aside lands in or near the NCA for the local
communities to farm. Livelihood diversification is urgent due to the restrictions on pastoralism in the
NCA, coupled with factors such as the increase in population and climate change. To further boost
food security in the area, the government should also consider making it mandatory for the NCAA
and businesses operating in the area to give priority to the employment of local people who have
the required qualifications. Income from employment will greatly help to boost household income
and increase the food security of NCA residents.
Finally, the international governance framework for World Heritage sites such as the NCA
needs to be revamped to reflect the requirements of international law and ensure that indigenous
peoples fully participate in the inscription and management of World Heritage sites that incorporate
or affect their lands, territories or resources.

219
References
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Dowie, M. 2009. Conservation Refugees – The Hundred-Year Conflict between Global Conservation and Native Peoples.
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Homewood, K. and Rodgers, W. 1991. Maasailand Ecology: Pastoralist development and wildlife conservation in
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223
Western Ghats of India:
A Natural Heritage Enclosure?
C.R. Bijoy
Introduction
O
f the 981 properties inscribed on UNESCO’s World Heritage List as of July 2013, 24 cultural
sites and six natural sites are in India.1 One of the natural World Heritage sites in India is the
Western Ghats, inscribed at the 36th Session of the World Heritage Committee in Saint Petersburg,
Russian Federation (24 June – 6 July 2012).
The Government of India’s Ministry of Environment and Forests (MoEF) took responsibility for
identifying potential sites in the Western Ghats, Eastern Himalaya and Terai Ecoregions in 2002
jointly with the Wildlife Institute of India (WII), Dehradun (a scientific institution), and two civil society
organizations, Ashoka Trust for Research in Ecology and Environment, Bangalore (ATREE), and
Nature Conservation Foundation, Mysore. The results of the assessment were discussed in a
National Seminar on World Heritage Properties organized by WII on 23 September 2004. In 2006,
1
Another 33 properties have been included on India’s tentative list of potential World Heritage sites, a prerequisite for
inscription on the World Heritage List.
Left: Huts of Malappandaaram tribal people, Pathanam Thitta District, Kerala (Periyar Sub-cluster). Photo: Riyas
224
the Western Ghats Cluster was entered on India’s tentative list as a potential ‘serial’ World Heritage
site nomination.2
The seven Sub-clusters of the Western Ghats (see Figure 1) were then formally nominated
as a serial natural site in January 2010 and first considered by the World Heritage Committee at
its 35th session in June 2011. However, the nomination was ‘referred’ back to the State Party –
which means that India had to provide additional information and meet some recommendations
of the Committee for approval to be granted. The decision to refer was accompanied by a
range of actions suggested to India, largely focused on ensuring that the size, complexity and
scope of the proposed site were suitable and that appropriate management arrangements for
the site would be formed. The decision also referenced, tangentially, a need for “participatory
governance approaches”, “increased engagement with all stakeholders”, and greater “community
membership and input” into the management of the site.3
The World Heritage Committee’s lack of reference to local communities and indigenous
peoples directly dependent on and living within the proposed sites was in contrast to local-level
activism against the declaration of the site as World Heritage. The preparation of the nomination
of the Western Ghats was met with protests from local inhabitants in various of the 39 component
parts of the serial site – a population of approximately 100 000+ people is directly dependent on
the 7,953.15 km2 that was included in the proposed site. The tribal peoples living in these areas
argued that they had not been involved in the preparation of the nomination of their lands, nor
were they represented in the management structures that would take overall control of the sites.
They also expressed concern that a World Heritage inscription would restrict their access to the
lands and resources on which they depend.
Western Ghats: Adivasi homelands
The Western Ghats, a chain of mountains, runs parallel to India’s western coast, about 30-50 km inland,
and traverses the states of Kerala, Tamil Nadu, Karnataka, Goa, Maharashtra and Gujarat. Spread over
140,000 km2 in a 1,609 km long stretch, it is interrupted by the Goa Gap, Palghat Gap and Shencotta
Gap. It is the source of at least 60 rivers, including three major ones (the Krishna, Cauvery and Godavari)
and is a lifeline for over 300 million people. It influences the entire Indian peninsula.
The Western Ghats is the abode and homelands of Adivasis in southern and western
India. The term ‘Adivasis’ is the more socially acceptable and recognized term of reference
and translates to the literal meaning of ‘indigenous peoples’; however, the officially
recognized term ‘Scheduled Tribes’ is often used instead and has a very specific legal
2
3
A serial nomination is any nomination that consists of two or more geographically unconnected areas.
Decision 35 COM 8B.9.
WESTERN GHATS OF INDIA: A NATURAL HERITAGE ENCLOSURE?
225
meaning.4 Scheduled Tribes are notified by the President of India in relation to a particular state
or union territory. The states of Kerala, Tamil Nadu, Karnataka and Maharashtra together have
a total of 121 Scheduled Tribe communities.5 Of these, 14 are also categorized as ‘Particularly
Vulnerable Tribal Groups’ (earlier called ‘Primitive Tribal Groups’) as they are considered as the
most marginalised among the Scheduled Tribes. At the time of the 2001 Census, the southern
region consisting of Kerala, Tamil Nadu and Karnataka together had an Adivasi population of
4,479,496 with a share of 5.31% of the total ST population of the country and Maharashtra with
8,577,276 had a share of another 10.17%.6 An overwhelming majority of Scheduled Tribes in
Kerala and Karnataka inhabit the Western Ghats while in Tamil Nadu and Maharashtra a significant
section of Scheduled Tribes dwell in the Western Ghats.
Over 300 hamlets with about 75,000 to 100,000 tribals, and over 4,000 non-tribals are located within
the sites in Western Ghats now conferred with World Heritage status. Another 100,000+ people live in
areas bordering these sites. These are the minimum estimates as no clear figures are available.7 There
are at least 29 tribal communities inhabiting these sites, of whom four are categorized as Particularly
Vulnerable Tribal Groups, namely Cholanaicken (semi-nomadic cave dwellers ‘discovered’ by the
outside world about four decades ago), Jenu Kuruba (honey gatherers), Koraga (‘untouchables’ forced
to do the most menial and dirty jobs) and Paniya (mostly landless agricultural workers and forest produce
gatherers). There are also subsistence farmers such as Mannan, Muthuvan, Kurichiar and Hallaki
Gouda. Forest-dependent nomadic hunter-gatherers, foragers, forest produce collectors, agricultural
workers and cultivators include the Paliya, Ulladan, Hill Pulaya, Urali, Irula and Siddi. The Siddis are
the descendants of African slaves who were brought to India mainly by Arabs, the Portuguese and the
Dutch. Adiya and Paniya, former bonded laborers working on plantations, are mostly landless. The Betta
Kuruba produce household items such as baskets and sieves from bamboo and other forest produce.
Only the three sites in Maharashtra do not have any tribal population. The Western Ghats therefore
contains a significant array of cultural diversity and a diversity of relationships between the different
indigenous and tribal peoples and the lands on which they depend. Altering the protected status of the
Western Ghats impacts on each of these peoples in distinct ways; however, this was not considered in
the World Heritage nomination process.
4
5
6
7
‘Scheduled Tribe’ is defined under Article 366 (25) of the Constitution of India as “such tribes or tribal communities or
parts of, or groups within such tribes, or tribal communities as are deemed under Article 342 to be Scheduled Tribes for
the purposes of this Constitution”. This status, conferred on the basis of birth of a person into a Scheduled Tribe, offers
certain specific constitutional privileges, protection and benefits. Although not all Scheduled Tribes are Adivasand
vice versa, by and large, the Scheduled Tribes as a category covers most of the Adivasi communities. Moreover, a
community recognized as Scheduled Tribe in one state need not be recognized similarly in another.
Kerala state has 36 Scheduled Tribes, Tamil Nadu 36, Karnataka 50 and Maharashtra 45. A number of their inhabited
areas are divided between states and so they find themselves listed in more than one state as STs. Taken together,
there are 121 ST communities.
Census of India 2001.
The calculations are based on a variety of sources, incl. Government of India 2009, National Tiger Conservation
Authority 2011, Johnsingh 2000, data of the Forest Department, Kerala (maintained by the Chief Conservator of
Forests and as per working/management plans) and personal communications.
226
Environmentally, the area is a rich store of biodiversity. An estimated 23% (43,611 km2) of the
original extent of forests (189,611 km2) remains intact.8 The Western Ghats is home to around
5,000 species of flowering plants (of which 1,700 are unique to the area), 58 endemic plant genera,
267 species of orchids, nearly 650 tree species, about 139 mammal species, 508 bird species, 179
species of amphibians, 157 species of reptiles, 218 species of fish and 330 species of butterflies. It
has the world’s largest population of endangered ‘landscape’ species such as the Asian elephant,
with around 11,000 elephants, gaur and tigers. At least 325 globally threatened (IUCN Red Data
List) species live in the Western Ghats. It is ranked, together with Sri Lanka, as one of the most
important biodiversity hotspots globally, and is one of the Global 200 most important ecoregions.9
Whose land is it?
Spread throughout the states of Kerala, Tamil Nadu, Karnataka and Maharashtra, the Western Ghats
serial sites total an area of 7,953.15 km2. All of the 39 sites are forest areas administered by the Forest
Department under the jurisdiction of the Ministry of Environment and Forests and the respective state
governments. Within this designation, however, there is a wide range of legal frameworks that apply
to the various sites in the Ghats, which makes a singular analysis of the legal situation of the lands
problematic. Twenty-two of the sites fall within the Protected Area (PA) regime of either national parks
or wildlife sanctuaries (2,028.76 km2 and 3,064.39 km2 respectively). Of these, two are notified as
Critical Tiger Habitats in Tiger Reserves (with one more likely to be notified) while five more sites are
part of three other Critical Tiger Habitats (totaling 1,954.35 km2 under Critical Tiger Habitat status).
The remaining sites are classed as either reserve forests (2,144 km2) or forest divisions (716 km2).
There are therefore five different legal classifications of protected status currently active in the 39
component sites, each with different restrictions and permitted activities.
The legal status of the lands involved and the complexity therein reflects a wider situation in India.
The appropriation of forested lands by the state has a long history, beginning when large tracts of Adivasi
homelands were declared forest under the Indian Forest Act, 1927.10 This law is a piece of central
legislation and, together with the respective state laws patterned on the central law, represents a colonial
regime that treats the area and its inhabitants as ‘conquered’. The law stipulates that the rights of the
inhabitants are to be recognized while declaring the areas as ‘forest’. Many areas in the Western Ghats
were notified as forest during British rule and have continued to be classified that way since India’s
independence. However, the legal rights of their inhabitants remained largely denied, unrecognized or
unsettled, which means that they are treated as though they are encroachers and criminals.
The Wildlife (Protection) Act, 1972 provides for the demarcation and notification of sections of
forest for wildlife protection either by restricting human activity via Wildlife Sanctuaries or totally
prohibiting it via National Parks.11 However, in a study of Protected Areas, it was found that 69%
8
9
10
11
Of this, 140 000 km2 are mountainous.
Government of India 2009, pp. 1-13.
Act No. 16 of 1927 [21 September 1927].
Act No. 53 of 1972 [9 September 1972]. For details on the procedures and restrictions imposed, see Chapter IV of the Act.
227
Map 1: Map of the Western Ghats, showing the seven Sub-clusters
included in the serial site. Source: World Heritage Nomination Dossier
of PAs surveyed had human populations living inside the declared area and 64% had community
rights, leases or other customary concessions.12 Consultative processes involving local people
during the declaration of the PAs and subsequent regulation and restriction of resource use were
generally found to be lacking.
The Forest (Conservation) Act, 1980 marked a shift in three important ways: by introducing
the element of conservation to the previous approach of maximizing revenue through forest
extraction; by prohibiting encroachment into the forests since 1980 and regulating the
diversion of forest for non-forestry activities; and by making control over the forests a joint
management responsibility with the central government whereas forests had previously been
12Kothari et al. 1989.
228
the exclusive domain of the respective state governments.13 The result was disastrous for the
Adivasis. The slow process of settlement of rights of the traditional forest dwellers, an issue
of persistent struggle since independence, came to an absolute halt, intensifying the crisis
faced by Adivasis.
In 1990, the central government and the state governments jointly decided to settle some
of the claims of these peoples and recognize a limited number of their rights;14 however, the
implementation of this joint decision never got off the ground and state governments ignored the
relevant directives of the central government. The crisis of survival for Adivasis only deepened.
Forest governance: from a colonial to a democratic regime
The widespread illegal evictions that were taking place across the country in 2002 under the guise
of reversing encroachment into the forests, and the consequent state violence, led to a nationwide
struggle of Adivasis asserting their traditional and customary rights, insisting that ‘historic injustice’
be rectified through the recognition of their rights to their lands and resources.15 The rapid spread of
the Maoists and their armed struggle – predominantly in forested regions – simultaneously brought
forested areas to the attention of both central and state governments.
The result of these pressures was the enactment of what is now popularly known as the ‘Forest
Rights Act’ in 2006, which became operational on 1 January 2008.16 The Act was drafted amidst a
heated and bitterly contested national debate, both in the media and in the corridors of power.17 The
Act seeks “to recognise and vest the forest rights and occupation in forest land in forest dwelling
Scheduled Tribes and other traditional forest dwellers who have been residing in such forests for
generations but whose rights could not be recorded; to provide for a framework for recording the
forest rights so vested and the nature of evidence required for such recognition and vesting in
respect of forest land”. It recognizes that “forest rights on ancestral lands and their habitat were
not adequately recognised in the consolidation of state forests during the colonial period as well
as in independent India resulting in historical injustice to the forest dwelling Scheduled Tribes and
other traditional forest dwellers who are integral to the very survival and sustainability of the forest
ecosystem”.18 The passage of this Act was a significant victory for recognition of the inherent rights
of Adivasis to their traditional and customary lands and resources.
13 Act No. 69 of 1980 [27 December 1980].
14 This process was to include: a review of the claims of inhabitants who had contended that their claims to lands were not
enquired into or commuted before notifying these lands as forests, the regularization of ‘encroachment’ prior to 1980,
and the restoration of titles, grants and leases of lands that were illegally cancelled at the time of notification of forests
and conversion of forest settlement into revenue settlement.
15 Led by the Campaign for Survival and Dignity, a coalition of over a hundred Adivasi mass organizations from 11 states;
for details see www.forestrightsact.com.
16 The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. Act No. 2 of
2007 [29 December 2006].
17 For a detailed account of this, see Bijoy 2008.
18 Extracted from the preamble to the Forest Rights Act (emphasis added).
229
Arrayed against the interests and rights of Adivasi peoples in the passage of this Act were the
powerful elite conservationists and environmentalists who not only angrily opposed any attempt
at recognizing the rights of forest dwellers but blamed them squarely for the rapid decimation
of forests and wildlife and demanded that they be forcibly evicted. This elite also targets those
conservationists who show any support for community conservation.19 This is despite the fact
that conservation science itself has increasingly exposed the fallacy and myth of pristine inviolate
wilderness while moving towards conservation with and by the people, especially indigenous
peoples and forest dwellers.20
This period of heightened tension also occurred when the proposal to nominate the
Western Ghats for World Heritage listing was first mooted. It is notable, however, that mention
of the Forest Rights Act could be found neither in the 2009 proposal for nomination nor in
the Supplementary Information submitted by MoEF at the request of IUCN in February 2011.21
This is despite the fact that a significant part of the proposed sites fell within the customary
and traditional boundary of Adivasi villages and the responsibility for conservation, including
of the cultural and natural heritage in these areas, was legally vested in the Gram Sabhas or
village assemblies (see below). For the MoEF, the Forest Rights Act (under which it is the Gram
Sabhas who now have the power to protect and conserve forests falling under their jurisdiction)
and its implementing agency, the Ministry of Tribal Affairs, simply did not figure in the proposed
protection and management structure for the site. Neither did the IUCN evaluation see fit to point
out this major flaw in the proposal.22
There was pushback against the rights recognized under the Forest Rights Act. In 2006,
the Wildlife Protection Act was amended to provide for the establishment of a National Tiger
Conservation Authority (NTCA) and the elevation of ‘Tiger Reserves’ from an administrative
category to a legal category consisting of ‘Critical Tiger Habitat’, to be kept ‘inviolate’ from
all human interference, and buffer zones where human activities were restricted.23 Since the
amendment was passed, there has been a rapid expansion in the number of areas declared
protected and in which all human interference is banned. Assessment and recognition of the
rights of the inhabitants was not carried out prior to a declaration of ‘Critical Tiger Habitat’,
as legally required. The state governments did not follow the procedures for consulting and
obtaining the informed consent of local communities legally mandated under the above
19
20
21
22
Sethi 2011.
Dowie 2009.
Government of India 2011.
IUCN’s Advisory Body Evaluation mentions the Forest Rights Act only in the following context: “A number of sites
have had their protection status and/or their boundaries altered since the nomination and this may have implications
for management. In most cases this has strengthened protection, however, there are likely to be implications for …
relationships with local human populations. For example Tiger Reserves require core ‘no go’ areas which, in the past,
required relocating people into buffer zones. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition
of Forest Rights) Act, is leading to a redefined understanding of ‘core’, as property rights of forest dwellers have been
recognised and forced relocation is banned. The implications of these changes need to be carefully weighed. The State
Party did not provide detailed supplementary information on the changed protection status of component parts of the
nomination.” (IUCN 2011, p. 42).
23 Wild Life (Protection) Amendment Act, 2006, No. 39 of 2006 [3 September 2006].
230
Adivasis at the gate of the Periyar Tiger Reserve, Kerala, one of the 39 sites included
in the Western Ghats ‘serial’ World Heritage site. Photo: Ashish Kothari
mentioned amendment to the Wildlife Protection Act nor did they negotiate the required
resettlement packages with secure livelihoods prior to the identification and notification of a
Critical Tiger Habitat.24 Despite such criticisms and complaints, and despite active resistance
by forest-dwelling communities, the MoEF and its National Tiger Conservation Authority have
continued to demarcate Critical Tiger Habitat and relocate inhabitants through compensation
packages that are not legally defensible.
Perpetuating historical injustice
The Forest Rights Act acknowledges a set of 13 rights, both individual and collective, and prescribes
a democratic and transparent process for determining the rights of the communities through their
Gram Sabhas, to be subsequently recognized by the state governments. This, in effect, recognizes
not only the prior failure of the state governments to protect such rights but also the need for full
and effective participation of the communities in rectifying the historic injustice to which they have
been subjected. One key change brought about by the law is the recognition granted to ‘community
24 For a detailed discussion on the law and practice, see Bijoy 2011.
231
forest resources’, the “customary common forest land within the traditional or customary boundaries
of the village” (Sec.2.a) where the communities were vested with the “right to protect, regenerate or
conserve or manage any community forest resource which they have been traditionally protecting
and conserving for sustainable use” (Sec.3.1.i). This right is to be exercised through the powers
vested in the Gram Sabha for protecting wildlife, forest and biodiversity from “destructive practices
affecting their cultural and natural heritage” (Sec.5).25
Expectations for change after the passage of the law were, however, disappointed. Even the
official government Committee on Forest Rights Act concluded that “with notable exceptions,
the implementation of the Forest Rights Act has been poor, and therefore its potential to
achieve livelihood security and changes in forest governance along with strengthening of forest
conservation, has hardly been achieved”.26 There has been a uniform reluctance to consider
claims to community rights, particularly the most significant Community Forest Resource rights,
across the country. At best, partial recognition to individual rights of occupation has taken
place in some instances but rejection rates remain exceptionally high at over 50%.27 One major
impediment to the implementation of the Forest Rights Act has been the active resistance of the
forest bureaucracy at all levels, with even numerous challenges to the Act itself being filed in
a number of High Courts by retired forestry officers and in the Supreme Court by conservation
non-government organizations, e.g. the Bombay Natural History Society,28 Wildlife Trust of India,
Wildlife Society of Orissa, All Assam Tribal Youth League, Wildlife First, Nature Conservation
Society and Tiger Research and Conservation Trust.29 MoEF has also been granting clearance,
in violation of its own 30 July 2009 order, to hundreds of projects diverting the forest for
non-forestry purposes without the consent of, and despite resolutions to the contrary by, the
concerned Gram Sabhas.
In the case of Kerala and Karnataka, the implementation process has been particularly abysmal,
and no titles have been issued at all in Tamil Nadu. Invariably, claims are not even considered in
25 In full, Section 5 of the Act (‘Duties of holders of forest rights’) states:
“The holders of any forest right, Gram Sabha and village level institutions in areas where there are holders of any forest
right under this Act are empowered to—
a) protect the wild life, forest and biodiversity;
b) ensure that adjoining catchments area, water sources and other ecological sensitive areas adequately protected;
c) ensure that the habitat of forest dwelling Scheduled Tribes and other traditional forest dwellers is preserved from
any form of destructive practices affecting their cultural and natural heritage;
d) ensure that the decisions taken in the Gram Sabha to regulate access to community forest resources and stop any
activity which adversely affects the wild animals, forest and the biodiversity are complied with.”
26 National Committee on Forest Rights Act 2010.
27 As of 30 September 2013, out of 3.54 million claims filed (3.47 million individual and 71,154 community), 3.08 million
were disposed of, of which about 1.41 million titles have been distributed. Updated data, including data for the individual
States, are available at http://tribal.nic.in/Content/ForestRightActOtherLinks.aspx.
28 The Bombay Natural History Society withdrew from the case under pressure in April 2012. It is still the petitioner in a
legal challenge to the provisions of the 2006 amendment to the Wildlife Protection Act 1972, however, which provides
for a consultative and democratic process with local communities in the determination of Tiger Reserves and stipulates
that Scheduled Tribes or other forest dwellers shall not be relocated from Critical Tiger Habitats unless their prior and
informed consent has been obtained and their livelihoods have been secured.
29 For a brief on the court cases, see http://www.forestrightsact.com/court-cases.
232
protected areas, which is in violation of the law. Adivasis await settlement of their claims and
continue to wait despite the clear law now in place guaranteeing them protection of their rights to
forest lands and resources. Outside the forest area, the story is no different.
Unlike in central India and in the north-eastern region, in southern India no tribal area has
been brought under the Fifth or Sixth Schedules of the Indian Constitution, which provide for a
certain degree of self-management.30 The Panchayats (Extension to the Scheduled Areas) Act
(PESA 1996) formally recognized the primacy of the Gram Sabha (the village assembly) over
key areas of community life in the Fifth Schedule Areas.31 Kerala, Tamil Nadu and Karnataka
have not brought Adivasi settlements under the Fifth Schedule despite the recommendation
of the Dilip Singh Bhuria Committee, which was constituted by the central government to
recommend the framework for PESA 1996.32 This has also been criticized by the National
Advisory Council of the Government of India, which has recommended, as recently as 2012,
that tribal areas in these states be brought under the Fifth Schedule.33 In Kerala, such autonomy
is a demand of the Adivasis, and forms one of the terms of the agreement of 16 October
2001 between the Kerala government and the leaders of the Adivasi struggle. In Tamil Nadu,
too, the official recommendation of the Tribal Welfare Department in 2002 was that “All tribal
habitations (hamlets/villages) should be declared as ‘Scheduled Area’ under article 244(1) of
the Constitution”, yet this recommendation remains unattended.34 Article 244 also mandates
the state to enact legislation to protect the Adivasis from alienation of their lands and to restore
illegally alienated land. While such laws have been enacted in a number of states, both Tamil
Nadu and Karnataka have no such legislation. In the case of Kerala, although a law was enacted
as far back as 1975, this was not implemented and the law was instead repealed in 1999 and
alternative land proposed.35 The impoverishment resulting from this denial of land rights led to
an uprising in 2003 that was brutally suppressed.36 Land rights, limited mostly to homestead or
residence, are conferred usually only as a result of the persistent struggles of the Adivasi.
30 There is also one area in western India that is a Fifth Schedule Area: Maharashtra.
31 Act No. 40 of 1996 [24th December, 1996]. The Gram Sabha was recognized as having, inter alia: the competence to
safeguard and preserve the traditions and customs of the people, their cultural identity and community resources; the
power to prevent alienation of land in the Scheduled Areas and to take appropriate action to restore any unlawfully
alienated land of a Scheduled Tribe; the ownership of minor forest produce; the planning and management of
minor water bodies; the right to be consulted on matters of land acquisition for development projects and before
resettling persons affected by such projects in the Scheduled Areas; the power to exercise control over institutions
and functionaries in all social sectors; the power to control local plans and resources for such plans, including tribal
sub-plans; and the power to issue utilization certificates for government works undertaken in their village.
32 See Bhuria Committee 1995, para. 7(2): “The process of scheduling was commenced in the fifties and was resumed in
the seventies as a part of making the tribal sub-plan and scheduled areas co-terminus. But somehow it has remained
incomplete. It is necessary that the remaining tribal sub-plan and MADA [Modified Area Development Approach] areas
as well as similar pockets in West Bengal, Tamil Nadu, Kerala and Karnataka should be covered by scheduled areas
notification.”
33 National Advisory Council 2012, p. 16.
34 Adi Dravida and Tribal Welfare Department 2002.
35 For details see Bijoy 1999.
36 Bijoy and Raman 2003.
233
Gram Sabha meeting in Yelavali village, Bhimashankar Sanctuary, Maharashtra, in the process of claiming
community forest rights under the Forest Rights Act. Photo: Ashish Kothari
All these are consistent with what a recent study of constitutional, legislative and administrative
provisions concerning indigenous and tribal peoples in India and their relation to international
law on indigenous peoples summarizes as follows: “The seemingly impressive range of legal
and policy instruments that exist in Indian law for indigenous peoples’ rights are vitiated by one
fundamental flaw – the Indian state’s reluctance to respect the political rights of indigenous
peoples and the subsequent widespread violations”.37 Tamil Nadu and Karnataka, and to a
slightly lesser extent Kerala, have failed to put in place the appropriate mechanisms to implement
many of these impressive legal instruments and thus effectively denied recognition of the rights
they protect.
Nomination of the Western Ghats
In January 2010, the Government of India submitted a nomination to UNESCO for the Western
Ghats to be listed as a ‘serial’ natural World Heritage site. The nomination was prepared by MoEF
and based on criterion (vii) (“contains superlative natural phenomena or areas of exceptional natural
beauty and aesthetic importance”) and criterion (x) (“contains the most important and significant
37 Bijoy, Gopalakrishnan and Khanna 2010, p.10.
234
natural habitats for in-situ conservation of biological diversity, including those containing threatened
species of outstanding universal value from the point of view of science or conservation”) of the
World Heritage Convention’s Operational Guidelines.38 MoEF constituted a Western Ghats Natural
Heritage Management Committee on 31 August 2010 for the purpose of “deal[ing] with matters
relating to the inscription and management of the Western Ghats Serial Sites”.39 This Committee
had 13 members but did not include any representatives of tribal peoples. It met in September of
that year to review itinerary and logistics for the two-member IUCN team visiting to assess the
scientific, technical and administrative aspects of the proposal through site visits and interactions
with scientists, conservationists and government officials. From the report of the evaluation
mission, it is evident that no meetings were scheduled with representatives of the Adivasis living
in the 39 nominated sites.40 The team travelled to the four states of Kerala, Tamil Nadu, Karnataka
and Maharashtra, where the component sites are located, from 10-23 October 2010. Significantly,
the team was confronted by various sections of the local population, including Adivasis, in some
locations.41 The local inhabitants were irked at the secrecy maintained by the forest officials and
conservationists around the team’s visit. The secrecy seemed to give credence to the suspicion
that the whole exercise had a sinister objective of depriving the local inhabitants of whatever little
rights they had, and that local inhabitants would be displaced or evicted as a result of the World
Heritage designation.42
Following the evaluation mission, IUCN sent a request for supplementary information to the
Government of India, stating, among other things, the following:
“IUCN notes that evidence of a lack of community support for the nomination was witnessed
by the evaluation mission through a demonstration that prevented the access of the mission
to one of the nominated components of the property. Such a scale of protest by a local
community is unusual in relation to IUCN’s experience and would seem to imply the need for
further stakeholder consultation in relation to at least some parts of the nomination. IUCN
would be grateful for the State Party’s advice on the nature and extent of community
consultation it has carried out with regard to each of the nominated components of the
property, and the degree to which there is presently community support for the nomination in
each case… IUCN would also welcome the provision of more detailed advice by the State
38 While the original submission cited criteria (vii) and (x), IUCN considered that the property did not meet criterion (vii). It
suggested that it instead be nominated under criteria (ix) and (x). The WH Committee in 2011 referred the nomination
back to the State Party, noting its potential to meet criteria (ix) and (x), without mentioning criterion (vii). In 2012, the
nomination was resubmitted under criteria (ix) and (x).
39 Government of India 2011, Appendix III (‘Constitution of Western Ghats Natural Heritage Management Committee’, 31
August 2010).
40 See IUCN 2011, p. 37, para 1d (Consultations).
41 See, for instance, The Hindu 2010. The Advisory Body Evaluation by IUCN states that the IUCN mission “witnessed
strident opposition to NGOs, Government and the nomination in some places such as Kodagu and Karnataka” (IUCN
2011, p. 42).
42See Deccan Herald 2010; The Hindu 2011b.
235
Party regarding the participation of local people foreseen in the proposed management
system for the property, at both local levels and within the overall management system.” 43
In its response to IUCN’s request for supplementary information, the Government of India
asserted that “extensive stakeholder consultations” had been carried out both during the process
of including the Western Ghats in India’s tentative list and also during the preparation of the
World Heritage nomination dossier. The protests against the nomination were dismissed by the
Indian government as follows: “The ‘one-off’ demonstration witnessed by the IUCN Evaluation
Mission in one of 39 serial elements is no way a reflection of the lack of community support for
this nomination. It was simply a manifestation of a local rivalry for seeking attention of the media
and government.”44 The government further claimed “that the incident at Kodagu in which some
local residents demonstrated their ‘wrath’ to the IUCN Evaluation Mission against the proposed
world heritage designation is basically a reflection of one vested interest group of people working
against another group and cannot be considered as a generalized and popular view across the
Western Ghats landscape… It is globally accepted that the world heritage designation to a site
‘per se’ does not lead to any economic hardships/loss of livelihoods to the local communities. In
view of the above, it is our considered view that not much credence should be given to the said
petition [sent by the protesters to the Director-General of UNESCO]”.45
The government acknowledged that “[t]he local communities including indigenous people
living in and around these sites depend on a variety of resources mainly to sustain their livelihood
needs” and that “[l]egal restrictions on the extraction of resources from the protected areas do
affect the local communities and give rise to conflicts with the management”. However, the
government maintained that “involvement of local communities and securing their support”
was already a focus of current management plans for the sites and that “processes of Joint
Forest Management in managed forest areas and eco-development in protected areas are
being focused and pursued in all sites” in order to “address the issues of local communities
participating in the conservation initiatives and to categorically understand the quantum,
nature and seasonality of resource dependency from these areas and to strategically address
the issues”. Although the government acknowledged that “[i]n some areas, the efforts being
made are in the initial stages”, it promised that “these will improve as the process evolves”.46
It can be assumed that at least some of the indigenous peoples and organizations from
the Western Ghats would not have been satisfied with these explanations and assurances by
the Indian government had they been asked for their opinion and views. However, neither the
original nomination document nor the supplementary information submitted at the request of
IUCN was made public by the Indian government, or UNESCO, prior to the 35th session of the
43 IUCN Evaluation of Western Ghats (India) – Request for Supplementary Information’, 6 January 2010. Contained in
Government of India 2011, Appendix I.
44 Government of India 2011, p. 19.
45 Ibid., Appendix II (Letter from the Inspector General of Forests).
46 Ibid., p. 23.
236
World Heritage Committee at which the nomination was considered. Indigenous organizations
from Western Ghats were therefore not informed about the content of these documents and
the various explanations and claims presented by the Indian government.
On 17 May 2011, a joint statement was delivered at the United Nations Permanent
Forum on Indigenous Issues, endorsed by a number of Adivasi organizations from the
Western Ghats, 47 in which they denounced the fact that the World Heritage nomination of
the Western Ghats was “prepared without meaningful involvement and consultation of the
Indigenous peoples concerned and without obtaining their free, prior and informed consent”
and that insufficient consideration had been given to the indigenous cultural values
connected to the nominated sites. The joint statement urged the World Heritage Committee
to defer the nomination and call on the Indian government “to consult and collaborate with
the Indigenous peoples concerned, in order to ensure that their values and needs are
reflected in the nomination documents and management plans and to obtain their free, prior
and informed consent”. 48 After being delivered to the UN Permanent Forum, the statement
was submitted to the Bureau of the World Heritage Committee, the World Heritage Centre,
the Director-General of UNESCO as well as the three Advisory Bodies, IUCN, ICOMOS and
ICCROM, prior to the World Heritage Committee’s session. 49 In addition, the UN Permanent
Forum called on the World Heritage Committee to “scrutinize current World Heritage
nominations to ensure they comply with international norms and standards of free, prior
and informed consent”.50 It should also be noted that the government of Karnataka officially
opposed the nomination of the 10 component parts within Karnataka, expressing concern,
among other things, at the implications for the rights of the tribal peoples living within the
forest areas.51
IUCN’s technical evaluation of the nomination (which was not made public until after the World
Heritage Committee’s session) noted that “there are obvious concerns in some locations over what
listing would mean” and that the IUCN mission “witnessed strident opposition to NGOs, Government
and the nomination in some places such as Kodagu and Karnataka”.52 While the IUCN evaluation
47 Budakattu Krishikara Sangha (Karnataka), Pothigaimalai Adivasi Kanikkaran Samuthaya Munnetra Sangam (Tamil
Nadu), Adivasi Gothrajaan Sabha (Kerala), Adivasi Gothra Mahasabha (Kerala) and Kerala Girivarga Kanikkar
Sangham (Kerala). Taken together, these organizations represent indigenous peoples from 20 of the 39 sites included
in the serial nomination.
48 Endorois Welfare Council et al. 2011. ‘Joint Statement on continuous violations of the principle of free, prior and
informed consent in the context of UNESCO’s World Heritage Convention’.
49 Additionally, the main concerns expressed in the joint statement were reiterated in an oral intervention of the
International Work Group for Indigenous Affairs (IWGIA) during the World Heritage Committee’s session, on 23 June
2011 (the day before the vote on Western Ghats was taken).
50 Permanent Forum on Indigenous Issues 2011, para. 42. The same recommendation was repeated in an oral statement
to the World Heritage Committee by Permanent Forum member Paul Kanyinke Sena on 22 June 2011.
51 See, e.g., The Hindu 2011a; The Hindu 2011c.
52 IUCN 2011, p. 42.
237
Forest-dwelling community in southwest Karnataka. Photo: Kai Vara
considered the local inhabitants of the nominated sites mainly in the context of discussing threats
to the natural values of the sites,53 it recognized that “property rights of forest dwellers have been
recognized” through the Forest Rights Act and criticized the fact that the implications of this had
not been sufficiently taken into account in the proposal.54 The technical evaluation also noted that
“there are some unclear land tenure issues”, due to the fact that parts of the property are private
land or community-controlled land, making it “difficult to effectively evaluate adequate protection”.55
IUCN therefore concluded, for these and other reasons, that “the management of the nominated
property does not meet the requirements set out in the Operational Guidelines” and that “the
protection status of at least parts of the nominated property does not meet the requirements set
out in the Operational Guidelines”.56 IUCN recommended that the Committee defer examination of
the nomination to allow the State Party to address the various issues.
On 24 June 2011, the Committee instead decided to refer the nomination of Western Ghats
back to the State Party, which meant that India needed to provide some additional information but
could resubmit the nomination to the following Committee session for examination. (In contrast,
53 For instance, the evaluation observed that “many of the natural areas have been disturbed… with different types of
cultivation… as well as human habitation” and that “[i]nevitably the presence of human settlements [within or in close
proximity to the nominated sites] poses a threat to the natural values of the property components through issues such
as encroachment, livestock grazing, fodder and fuel wood collection, illegal hunting and increasing interest in tourismrelated activity among others”. Pilgrimage sites within some components of the property were also mentioned as a
threat, due to the “resultant periodic heavy use and impact” (ibid., pp. 38-39).
54 Ibid., p. 42.
55 Ibid., p. 40.
56 Ibid. p. 41-42.
238
a deferral would have required substantial revisions or more in-depth research by the State Party
and necessitated a complete re-evaluation and an additional site visit by IUCN.) The Committee’s
decision stated that the nomination was referred, among other things, in order to allow the State
Party to “facilitate increased engagement with all stakeholders to build awareness and support,
foster participatory governance approaches, and ensure equitable sharing of benefits” and to
“strengthen community membership and input” in the management of the component sites. The
decision further called on the Indian government to “harmonize arrangements between the ‘Western
Ghats Natural Heritage [Management] Committee’ and the ‘Western Ghats Ecology Expert Panel’”,
and to “review the scope and composition of the current serial nomination to take account of any
recommendations of the ‘Western Ghats Ecology Expert Panel’… to further enhance the protection
of the values of the nominated property”.57
The Western Ghats Ecology Expert Panel (WGEEP) was set up by MoEF in 2010 to “assess
the current status of ecology of the Western Ghats region”, “demarcate areas which need to be
notified as ecologically sensitive” and “make recommendations for the conservation, protection
and rejuvenation of the Western Ghats Region following a comprehensive consultation process
involving people and Governments of all the concerned States”.58 The final report of the WGEEP
was issued in August 2011, while MoEF was preparing the additional information requested by
the World Heritage Committee.59 The report stressed that “The Forest Rights Act (FRA) 2006 has
yet to be implemented in its true spirit and the State Forest Departments to be alerted to the fact
that implementation of this act is needed for future forestry governance”.60 In regard to the World
Heritage nomination, the WGEEP concluded that there was “a need for greater participation of
local people and communities in formulation and implementation of the Western Ghats National
Heritage proposal”, adding that the “objections raised at the UN Permanent Forum on Indigenous
Issues to the Indian proposals on 17 May 2011” were “serious and quite genuine”.61 The Panel also
noted that it was “inappropriate to depend exclusively on Government agencies for constitution
and management of Ecologically Sensitive Zones”. The Panel suggested that instead “the final
demarcation of the Zones (…also in context of the UNESCO Heritage Site proposal)…, and finetuning of the regulatory as well as promotional regimes, must be based on extensive inputs from
local communities and local bodies” and that the “process of fine-tuning the limits of the various
zones, deciding on management regimes and the implementation be a participatory process going
right down to gram sabhas”. Such an approach, the WGEEP remarked, “would more effectively
serve the objectives of the UNESCO Heritage Programme, than the proposals currently submitted
by the Government of India”.62
58 Ministry of Environment and Forests 2010
59 The WGEEP’s report was only made public by MoEF in May 2012 following a court directive, and with a disclaimer that
it had not been formally accepted by the Ministry and was being analyzed and considered by the Ministry. See Dhar
2012; Garg 2012.
60 WGEEP 2011, Part II, p. 66
61Ibid., Part II, pp. 121, 322.
62 Ibid., Part I, p. 40; Part II, p. 121.
239
Despite these recommendations of the WGEEP, the Government of India went ahead and
resubmitted the Western Ghats World Heritage nomination to UNESCO in January 2012. The
additional information submitted by India63 continued to ignore the Forest Rights Act and the
statutory authority of the Gram Sabhas, and the Government did not “strengthen community
membership and input” as requested by the World Heritage Committee, nor did it “facilitate
increased engagement with all stakeholders to build awareness and support, foster participatory
governance approaches, and ensure equitable sharing of benefits”. In response to the Committee’s
request that India review the scope and composition of the serial nomination taking into account
the recommendations of the WGEEP, the government claimed that: “The matter of determining
the inclusion/exclusion of sites in the serial nomination has not been dealt by the Western Ghats
Ecology Expert Panel and accordingly there are no recommendations on this issue”.64 In fact,
however, the report of the WGEEP did deal with the subject, as outlined above.
IUCN evaluated the additional information submitted by India and recommended, once again,
that the nomination be deferred. Among other things, IUCN saw a need for the State Party to
“undertake a further consultation to facilitate increased engagement to ensure the views of all
stakeholders, including local indigenous groups are considered, in order to ensure and demonstrate
broad-based support for the nomination”. IUCN also recommended that the Indian government
“review and refine the scope and composition of the current serial nomination to take into account
the recommendations of the WGEEP noting the Panel was tasked to… define ecologically sensitive
areas through consultation”.65
In the meantime, Adivasi organizations in the Western Ghats again submitted a joint statement
to the 2012 Session of the UN Permanent Forum on Indigenous Issues, to UNESCO and to the
World Heritage Committee urging the Committee not to approve the nomination of Western Ghats
“or any other nominations of sites in Indigenous peoples’ territories, until it has been ensured that
the Indigenous peoples concerned have been adequately consulted and involved and that their
free, prior and informed consent has been obtained”. The statement noted:
“The Government of India has resubmitted a revised nomination in January 2012, however,
there still has not been any meaningful involvement and consultation of the affected
Indigenous peoples and their free, prior and informed consent has not been attained. This
is underscored by the fact that the revised nomination documents have not been made
public by the Indian Government and are also kept secret by UNESCO. It is clear then that
the concerns raised in last year’s joint statement have not been adequately addressed…
We are deeply troubled by the lack of transparency and the secrecy of the procedures.
It is noteworthy that the concerns raised in last year’s joint statement have been
corroborated in the final report of the Western Ghats Ecology Expert Panel (WGEEP)… We
63 Government of India 2012.
64Ibid., pp. 10-11.
65 IUCN 2012.
240
are deeply concerned that the revised nomination…, which could only be obtained through
unofficial sources, conceals the conclusions of the WGEEP regarding the World Heritage
nomination. We are also concerned that the nomination documents still do not acknowledge
nor recognize the Forest Rights Act according to which the village assemblies (gram
sabhas) have statutory authority over the management and protection of significant parts
of the nominated areas.” 66
The statement was sent to all members of the World Heritage Committee on 23 May 2012 and receipt
was acknowledged by the Chairperson during the Committee’s 36th session in Saint Petersburg.67
However, the Committee – of which India was a member – resolved to inscribe the Western Ghats
on the World Heritage List on the basis of criteria (ix) and (x), rejecting the assessment of IUCN
and ignoring the objections of the Adivasi organizations.68 The concerns regarding the lack of
consultation of indigenous peoples were not discussed by the Committee, except for the fact that
the Indian representative, Ambassador Vinay Sheel Oberoi, declared that India was a democracy
and that each of the indigenous communities in the Western Ghats had been “a part and a party to
the process”. He also maintained that the nomination had “gone through a process of community
consultation mandated by law” and that the boundaries of the World Heritage site had been defined
with “the greatest possible consultation”.69 In essence, being a member of the Committee, India
lobbied hard to make sure its nomination was approved and the Committee meeting was just a
formality, a farce devoid of facts or science.
The Statement of Outstanding Universal Value (OUV) adopted by the World Heritage Committee
states that all component parts of the serial site are “owned by the State and are subject to stringent
protection under laws including the Wildlife (Protection) Act of 1972, the Indian Forest Act of 1927,
and the Forest Conservation Act (1980). Through these laws the components are under the control
of the Forestry Department and the Chief Wildlife Warden, thus the legal status is adequate.” 70 The
OUV Statement fails to mention the Forest Rights Act, although this law overrides all the other forest
laws, substantively and qualitatively changing the forest governance in most parts of the forests in
the country.71 What is thus being denied is the legal reality that the forest communities are now the
statutory authority to govern and manage those forests under their traditional and customary usage,
qualifying as ‘Community Forest Resource’ under the Forest Rights Act. Instead MoEF is projecting
the so-called ‘Village Eco-development Committees’ as the sole effective instrument for community
participation,72 which, unlike the Gram Sabhas, are controlled by the forest bureaucracy and created
66 For the complete statement, which also contains a summary of the relevant recommendations of the WGEEP, see
IWGIA et al. 2012.
67 See UNESCO 2012, p. 130.
68 See ibid., p. 193 ff. and World Heritage Committee Decision 36COM 8B.10.
69 A recording of the debate is available at http://whc.unesco.org/en/sessions/36COM/records (See July 1, 2012, at 6:49
PM – 6:53 PM).
70Decision 36COM 8B.10, para. 3.
71 It should be noted that IUCN, too, failed to list the Forest Rights Act among the laws governing the protection of the
serial site (see IUCN 2011; 2012).
72See Government of India 2012, pp. 23-24.
241
by administrative fiat. This reflects a disrespect for the law and a desire for hegemonic control over the
forests, relegating conservation to the periphery. MoEF also refuses to acknowledge the existence of
Panchayat Raj institutions (locally-elected governance bodies), or the elected members of the relevant
state legislatures and of the Parliament, in its desperation to keep everything exclusively within the
confines of the forest bureaucracy. In inscribing the Western Ghats on the World Heritage List, the
World Heritage Committee therefore neither upheld the principles of the UN Declaration on the Rights
of Indigenous Peoples nor Indian laws but instead provided prestige and legitimacy to something that
is patently illegal and unjust with regard to indigenous peoples.
Conclusion and recommendation
The designation of Western Ghats as a natural World Heritage site has to be contextualized and
placed in the reality of its traditional inhabitants, the Adivasis or Scheduled Tribes, including the
widespread violations of their rights both historically and to the present day. There is a fear, which
was expressed by local peoples during the IUCN evaluation and afterwards, that the inscription of
the Western Ghats on the World Heritage List will precipitate a survival crisis. Union Environment
Minister, Jayanthi Natarajan, has tried to allay these fears by stating that “tribal communities living
in and around the 39 serial sites will not be adversely affected by the World Heritage designation”
and that listing would “in no way affect the present management regime of the sites, which would
be managed… under the legal provisions of the Wildlife Protection Act, Indian Forest Act and the
Forest Rights Act”.73
Such promises are hardly reassuring to the traditional inhabitants, considering that the Forest
Rights Act was not even mentioned in the nomination documents and is routinely violated in India
and Western Ghats. Moreover, the Forest Rights Act was violated during the World Heritage
nomination itself, which was prepared without the full and effective participation of the Gram
Sabhas concerned and submitted without obtaining their free, prior and informed consent. The
decision of the World Heritage Committee to inscribe the Western Ghats without insisting on a
substantial revision of the nomination that takes adequate account of the implications of the Forest
Rights Act compounds the gross illegality of the Indian government agencies. This made the World
Heritage Committee a collaborator in the violation of the traditional inhabitants’ rights. The added
prestige brought to the site by international recognition and the pressure that inscription entails
are likely to perpetuate injustices. World Heritage inscription in ignorance and violation of existing
rights and without the consent of the traditional inhabitants delays the recognition of rights and is
an incentive to continue denying those rights.
73 Cited in Gandhi 2011. Similarly, the previous Environment Minister, Jairam Ramesh, stated in June 2011 that “these
sites would continue to be managed under national laws and will not be subject to any additional legal provisions
imposed by UNESCO. I would like to reiterate that the World Heritage designation will in no way affect the tribal and
other local communities living in and around these sites” (The Economic Times 2011).
242
The World Heritage Committee is aware of these concerns. At its 35th Session in June 2011,
the Committee adopted a decision that explicitly “encourages States Parties to… Respect the
rights of indigenous peoples when nominating, managing and reporting on World Heritage sites in
indigenous peoples’ territories”.74 However, this decision was not reflected in the instructions given
to India at the 35th and 36th Sessions regarding the Western Ghats nomination.
This situation can be redeemed only by ensuring that the rights of indigenous peoples are
respected in the Western Ghats through a series of actions. First, there should be a complete and
satisfactory implementation of the Forest Rights Act in the listed sites prior to any further action
by MoEF to develop or implement new management and governance mechanisms for the World
Heritage site. Any new management systems for these sites should incorporate the relevant Gram
Sabhas as the authority with power to protect wildlife, forest and biodiversity from ‘destructive
practices affecting their cultural and natural heritage’ in the customary and traditional boundary of
Adivasi villages recognized as a ‘community forest resource’. As part of this, the free, prior and
informed consent of the relevant Gram Sabhas must be obtained before any new governance or
management mechanisms are introduced, not just as a matter of principle but as an implicit legal
requirement under the Forest Rights Act. Finally, the Ministry of Tribal Affairs should be included
on a par with the Ministry of Environment and Forests as the agency responsible for the sites. 
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74 Decision 35 COM 12E, para. 15.f.
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244
245
Indigenous Peoples and Modern Liabilities in the
Thung Yai Naresuan Wildlife Sanctuary, Thailand:
A Conflict over Biocultural Diversity
Reiner Buergin
Introduction
S
ince the 1970s, a global environmental and developmental crisis has been conceptualized
and negotiated in controversial modern discourses about nature conservation, sustainable
development and globalization. The need to protect endangered ‘natural forests’, ‘wilderness
areas’ and ‘biodiversity hotspots’ as global heritage and assets figures prominently in academic
arguments and conservation strategies of non-governmental organizations, as well as in the
policies of national and international administrative bodies.
In this context, conflicts have emerged between culturally diverse local communities, particularly
indigenous peoples, who derive their livelihoods and identity from their lands and resources,
and external modern actors and institutions who claim rights and control over these areas and
resources, invoking national and global interests in nature conservation and modernization.
These conflicts represent an historically specific expression of competing claims at the fringes of
expanding modern societies, framed in current discourses which increasingly propose, at the same
time, the preservation of biological as well as cultural diversity.
Left: A Karen house in Gosadeng village in the Thung Yai Naresuan Wildlife Sanctuary. Photo: Reiner Buergin
246
This article is concerned with these widespread conflicts over bio-cultural diversity, focusing
on the particular case of the Karen indigenous communities living in the Thung Yai Naresuan
Wildlife Sanctuary in Western Thailand. Together with the adjoining Huai Kha Khaeng Wildlife
Sanctuary, their living place was declared a UNESCO World Heritage site in December 1991. The
two sanctuaries encompass more than 6 200 km² and are the core area of the so-called Western
Forest Complex, constituting Thailand’s largest remaining forest area. Based on an extensive
study of the history and current situation of the Karen communities in Thung Yai, the paper will
refer to the relationship between the local communities and their natural and social environments,
their interaction with the Thai state and the World Heritage nomination and management systems,
recount changing ideological and legal views of the conflict, and explore approaches to solving the
problems.
History, identity and livelihood of Karen people in Thung Yai
At the beginning of the 21st century, some 3 500 people are living in the Thung Yai Naresuan
Wildlife Sanctuary. Most of them are Pwo Karen and were born in Thailand, predominantly within
the sanctuary itself. They generally grow rice as subsistence farmers on swidden and paddy fields.1
According to Karen oral history, their ancestors came to the area fleeing political and religious
suppression in Burma after the Burmese had conquered the Mon kingdoms of Lower Burma in the
18th century. The first written historic references to their residence in Siam’s2 western border area
can be found in chronicles of the late 18th century. In the early 19th century, they received formal
settlement rights from the Governor of Kanchanaburi, and the rank of Siamese nobility Khun Suwan
was conferred on their leader. When the status of the border area was raised to that of a muang or
principality – between 1827 and 1839 – the Karen leader of the muang was awarded the title of Phra
Si Suwannakhiri by King Rama III. Since 1873 at the latest, Phra Si Suwannakhiri has resided in
Sanepong, which became the centre of the muang and is now one of the Karen villages lying within
the Wildlife Sanctuary. During the second half of the 19th century this muang was of considerable
importance to the Siamese kings, guarding part of their western border with British Burma. Karen
living there were consulted regarding the delineation of the border between Siam and Burma under
King Rama V.3 It was only at the beginning of the 20th century, after the establishment of the modern
Thai nation state, that the Karen in Thung Yai lost their former status, reappearing on the national
political agenda as forest encroachers and illegal immigrants towards the end of the 20th century.
The Thai name Thung Yai (big field) refers to a savannah in the centre of the sanctuary.
For the Karen, the savannah is a place of deep spiritual significance, referred to in Karen as
pia aethala aethae, which can be translated as ‘place of the knowing sage’. The Karen term
1
2
3
The survey data on which this article is based is accessible in Buergin 2002a, 2004, see also note 6.
The Kingdom of Siam was renamed Thailand in 1939.
See Buergin 2004, pp. 83-100; regarding the history of the western border areas see also Renard 1980; Thongchai
1994.
INDIGENOUS PEOPLES AND MODERN LIABILITIES IN THE THUNG YAI NARESUAN WILDLIFE SANCTUARY, THAILAND
247
Map 1: Map of the “Thungyai-Huai Kha Khaeng Wildlife Sanctuaries” World Heritage site.
The two Wildlife Sanctuaries that make up the World Heritage site constitute the core area
of the Western Forest Complex, Thailand’s largest remaining forest area with considerable
importance for biodiversity conservation in mainland Southeast Asia as well as globally
aethae refers to mythological hermits who, according to Karen lore, lived and meditated in the
savannah. The story of these hermits is important for the identity of the Karen in Thung Yai and
they are honoured. Karen seeking spiritual development still retreat to this place for meditation.
To refer to their community and homeland, the Karen in Thung Yai use the term thong bou tai.
The term refers to a specific way of life and values, focusing on the control of greed and spiritual
development. These conceptions are related to the Telakho sect, a millenarian Buddhist sect
originating in the middle of the 19th century, possibly in or close to the present-day sanctuary,
and which is still influential in Thung Yai.4 All the villages in the sanctuary, as well as some
Karen villages at the edge of the sanctuary, are included in this culturally and geographically
determined community.
4
See Stern 1968; Ewers Andersen 1976; Buergin 2004.
248
Karen ceremony for the guardian of the forest ‘rukkhajue’, part of a big festival in the ‘Thung Yai’ savannah
to honour the mythological hermits ‘aethae’. Photo: Reiner Buergin
The Karen in Thung Yai conceive of themselves as people living in and of the forest, as
part of a very complex community of plants, animals, humans and spiritual beings. Within this
community, the Karen do not feel superior but rather as highly dependent on the various other
beings and forces. Living in this community requires adaptation as well as specific knowledge about
the interdependencies and rules of the community. Fostering relations with the various caretaker
spirits of this ‘forest community’ is an important part of Karen life in the sanctuary. Their permission
and support has to be sought continuously in order to live in and use the forest and land. From a
modern perspective, many of these rules and traditions could be labelled ‘ecological knowledge’.
In these rules and norms, as well as in their daily livelihood practices, passed on and transformed
from generation to generation, a very rich and specific knowledge has been conserved about the
environment of the Karen.
The Karen’s relations with the outside world, specifically the ‘Thai world’, have changed
frequently. During the first half of the 20th century, the Karen communities were largely autonomous,
even though the villages in Thung Yai were formally integrated into the Thai nation state. It was not
until the 1960s, in the wake of the growing interest of the state in its peripheral areas, that state
institutions became increasingly relevant in Thung Yai: stations of the Border Patrol Police (BPP)
were established in the 1960s, followed by various state offices supporting ‘development’, as well
as the Royal Forest Department (RFD) and the military since the 1980s.
249
The permanent presence of Thai people in Karen villages since the 1960s, as well as the
activities of government institutions aimed at assimilating the Karen into the Thai nation state,
resulted in changes in the social, political and religious organization of Karen communities in
Thung Yai. These include the decreasing importance of the traditional Karen matrifocal kinship
groups and the emergence of a more household-centred and patrifocal ritual system at the village
level, the clash of a rather egalitarian and consensus-oriented political organization at the village
level with a more authoritarian and hierarchical external political system, and the obstruction of
the transmission of Karen identity to the younger generations due to the introduction of the Thai
education system in the villages.5
The economic organization of most of the households remained relatively unchanged until
the late 1980s and early 1990s when restrictions on their land-use system began to threaten the
subsistence economy and material wellbeing of the Karen in Thung Yai. Even today, most of the
households in Thung Yai practise subsistence farming, predominantly growing rice in swidden fields
and some paddy fields. Within a territory ‘supervised’ by the village community, every year each
household selects a swidden field according to household size and work capacity. The secondary
vegetation of a fallow area – predominantly bamboo forest – is cut, and burnt after a period of drying.
After being used to grow hill rice, generally for one year, the field is once again left fallow for several
years, while numerous plants growing in the fallow are used continuously. The traditionally long fallow
periods of 5-15 years or more are currently prohibited by the Thai Royal Forest Department (RFD),
which considers land uncultivated for that length of time to be reforested, and therefore land that
cannot be cleared or used for cultivation. In swidden fields, gardens and forests, a great variety of
other plants are grown and collected. Fishing is important for protein. Small supplementary cash
incomes are obtained in most households by way of selling chillies, tobacco and various other fruits
grown within the traditional land-use system. Wage labour is of little importance to most households.
The mean annual per capita income in 1996 was less than US$ 50.6
Deforestation, protected areas and ‘hill tribes’ in Thailand
Throughout the second half of the 20th century, the relationship of the Karen in Thung Yai with the
Thai state was predominantly defined by the state categorizing them as ‘hill tribes’ and declaring
their living place a national forest. Profound changes to their economic organization began in the
5
6
Regarding the complex dynamics of these changes see Buergin 2002b, 2004, pp. 269-322.
To date, the data collected in 1996/97 (see Buergin 2002a, pp. 219-278) is the most detailed and reliable data available.
More recent demographic and economic data regarding the Western Forest Complex (WEFCOM) was collected
in 2003/2004 by public authorities in rapid socio-economic surveys and were compiled in the context of the GMS
Biodiversity Conservation Corridors Initiative of the Asian Development Bank (see ADB 2005, pp.8-11). According
to this data, the mean annual income in Sub-district Lai Wo (which comprises most of the Karen communities in
Thung Yai) was around US$ 263 per household or US$ 53 per person, while the figures for Lai Wo in my survey in
1996/97 were US$ 271 per household and US$ 57 per person. Population data for 2004 giving a total of 3,319 Karen
people living in the Thung Yai Naresuan Wildlife Sanctuary likewise indicates that basic socio-economic data such as
population size and incomes has not changed significantly.
250
1980s and were closely related to the follow-on effects of the declaration of Thung Yai as a Wildlife
Sanctuary in 1974. The case of Thung Yai is only one example of a broader controversy on people
and forests in Thailand (and globally), rooted in conflicting interests involving the resources of
peripheral forest areas in the context of changing forest, development and conservation policies.7
Forest and biodiversity conservation in Thailand has focused on the establishment of protected
areas that are controlled by the government. This modern approach to nature conservation gained
strength in Thailand in the 1950s, during a period of pronounced nationalism, and was based
on a prevailing international trend of presupposing an inherent incompatibility between nature
conservation and resource use by local communities. Legal provisions for protected areas were
created in the 1960s, and the RFD was made responsible for their creation and management.8
Prior to this approach that emerged in the 1950s, the main concern of the RFD was the allocation of
concessions for teak extraction, a lucrative business. After World War II, however, tropical forests
were increasingly seen as important and swidden cultivation was stigmatized as inefficient and
detrimental to tropical forest resources. By the mid-1960s, almost 40% of Thailand’s total land
area had been assigned to concession areas, and swidden cultivation was prohibited. At the same
time, the demarcation of protected areas was beginning, although this proceeded slowly at first.
The global spread of modernization and the expanding world market was also influencing national
agricultural policies: Thailand’s rapid economic growth during the 1960s and 1970s was based on
the state-propagated extension of agricultural areas for the cultivation of cash crops for the world
market. Alongside a fast growing population, this policy resulted in rapid deforestation.
Despite the emergence of protected areas’ legislation from 1950 through to the early 1980s, the
forest cover in Thailand decreased from almost two-thirds to less than one-third of the total land area,
and deforestation was increasingly perceived as a problem. The RFD then had to explain this rapid
deforestation to a conservation-sensitive urban public with growing political power. It also had to deal
with some 10 million rural people – about one-fifth of the total population – who were living ‘illegally’
in areas declared as forest reserves. Of these ‘forest areas’, more than one-third were being used
for agriculture, constituting at least one-third of Thailand’s entire agricultural area. In this situation of
contested competence and growing resistance, the RFD concentrated on implementing a Protected
Area System (PAS) that was to encompass 28% of the total land area of Thailand.9
The issue of people living in forest areas became an important societal controversy, including
issues of justice, resource control, land rights and democratization. On the one hand, the RFD –
7
8
9
See for example Sato 2002; Buergin 2003b; Vandergeest and Peluso 2011. For a more comprehensive account see
Buergin 2004, pp. 101-200.
On the history and policies of the RFD see Usher 2009.
See Buergin 2003a. The PAS was devised in detail in the Thai Forestry Sector Master Plan 1993 (TFSMP) without a
stated timeline. While the TFSMP as a whole was never approved by the Thai government, the objective to designate
27.5% of Thailand’s terrestrial area as ‘protected areas’ had already been adopted in 1992. In 2008, almost 19% of the
land area was legally designated ‘protected areas’ with another 4% currently in preparation according to the National
Parks, Wildlife and Plant Conservation Department (Usher 2009, p. 174). Furthermore, around 10% are designated as
Class 1A and 1B Watershed Forests, which are not categorized as ‘protected areas’ but are subject to ‘conservation’
objectives. The most recent official forest policy statement (in the 10th Social and Economic Development Plan 2007)
targets a minimum forest cover of 33%, incorporating both protected areas and watershed forests.
251
together with primarily conservation-oriented NGOs and academics – concentrated on conservation
issues. For them ‘people and forests cannot co-exist’ and forest protection required the removal of
human settlements from the forests. On the other, peasant movement groups, socially concerned
academics and people-oriented NGOs focused on the interests and problems of rural communities
and the rights and interests of long-standing forest communities. They presupposed a vital interest
of local communities in protecting their forests as a source of livelihood, as well as for ecological
and cultural functions, and pointed to a history of community conservation in the remaining forested
areas.10 This controversy led in part to the drafting of the Community Forest Bill (CFB), which was
fiercely disputed throughout the 1990s and finally approved in 2007. The final passage of the bill
did not, however, resolve the long-running conflict and the status of communities and community
forests in protected areas remains problematic and controversial.11
The particularly problematic issue of ethnic discrimination is rarely addressed in the debate on
forest legislation: most of the people living in areas designated for the PAS are members of the ‘hill
tribes’, or chao khao in Thai. This term came into use in the 1950s as a generic name for various
non-Tai ethnic groups living predominantly in the uplands of northern and western Thailand, and
does not differentiate between those who have lived on their customary lands for generations,
pre-dating the Thai state, and those who migrated into the Thai state at a later date. Officially it
covers nine distinct tribal peoples, the Karen, Hmong, Lisu, Lahu, Akha, Mien, Khamu, Lua’ and
H’tin, each with its distinct language and culture. The term implies a negative stereotype associated
with destruction of the forest, the cultivation of opium, and dangerous non-Thai troublemakers.
During the 1960s and 1970s, the move to eradicate opium cultivation and the on-going communist
insurgency dominated the government’s attitude towards highland peoples. By the mid-1980s,
both of these issues had lost their urgency, and forest conservation had risen to replace them
in the public interest. Although the settlement areas of hill tribes were those areas where most
of the remaining forests were to be found, the hill tribes were conceived of as being the main
‘problem group’ regarding deforestation and resettlement was the preferred solution.12 Members of
the highland groups dislike the term hill tribes and prefer either Thai Mountain peoples (chao Thai
phu khao), more commonly used within Thailand, or indigenous peoples (chon pao puen muang),
more often used internationally.
At the local level as well, conflicts between ethnic Tai and hill tribe groups arose during the
1980s. Resource conflicts over land, forests and water occurred as ethnic Tai farmers spread into
the uplands, and as the populations of hill tribes grew and many of them took up cash cropping.
Increasingly in the late 1990s, ethnic minority groups in the uplands were arbitrarily arrested,
forcibly resettled and terrorized.13
10
11
12
13
For example Santasombat 1992; Ganjanapan 1998; Buergin and Kessler 2000; Laungaramsri 2000.
Brenner et al. 1999; Weatherby and Somying; 2007; Usher 2009.
Buergin 2000.
McKinnon and Vienne 1989.
252
Nature conservation, oppression and eviction in Thung Yai
The idea to protect forests and wildlife in western Thailand by establishing two wildlife sanctuaries
arose in the mid-1960s among conservation-oriented officials of the RFD. At the same time, Western
biologists had drawn attention to the zoological importance of the region. By then, deforestation was
already increasing considerably in other parts of the country, although it was generally not perceived
as a problem at that time but rather as supporting national development and security. Due to strong
logging and mining interests in the area, it was not until 1972 that the first of the two sanctuaries, Huai
Kha Khaeng, was established. Commercial interests in Thung Yai Naresuan were even stronger.
However, after a military helicopter crashed in Thung Yai in April 1973, revealing an illegal hunting
party of senior military officers, businessmen, family members and a film star – attracting nationwide
public outrage – the area was finally declared a Wildlife Sanctuary in 1974.14
During the 1960s, not only timber and ore were of interest for commercial profit and national
development but also the waters of the western forests, as a hydroelectric power resource. Four
major dams were planned in the upper Mae Klong River, incorporating both the major tributaries,
Khwae Yai and Khwae Noi. Three of these were completed: Sri Nakharin was finished in 1980, Tha
Thung Na 1981 and Khao Laem (later renamed Vajiralongkorn) in 1984. The fourth planned dam,
the Nam Choan Dam, was supposed to flood a forest area of about 223 km² within the Thung Yai
Naresuan Wildlife Sanctuary, and sparked a widespread public debate. The public dispute lasted
for more than six years, dominating national politics and public debate in early 1988 until the project
was shelved in April of that year with little prospect of being revived. Pointing to the area’s high
value for nature conservation and biodiversity, national and international opponents to the dam
raised the possibility of declaring the area a World Heritage site. This prestigious option would
have been lost with a huge dam and reservoir in the middle of the two wildlife sanctuaries judged
most promising for fulfilling the requirements for nomination as global heritage.15 The success of
14 In a time of great political unrest, the poaching incident had become a focal point for the prevailing discontent with
the military rule, triggering public protest and demonstrations that finally led to the fall of the Thanom-Prapas Regime
after the uprising of October 14, 1973 and the establishment of a new democratic government. After the military had
taken power once again in October 1976, many of the leaders and activists of the democracy movement fled into the
peripheral regions of the country that were under control of the Communist Party of Thailand. Many of them sought
refuge in the western forests and among the Karen people living in the sanctuaries. For commercial hunters, logging
companies and state authorities, vast areas of the western forests became inaccessible until the beginning of the
1980s, one of the reasons why they have remained largely undisturbed until today.
15 Most outspoken in this regard were Veeravat Thiraprasat, then chief of the Thung Yai Naresuan Wildlife Sanctuary and
supportive of the Karen in Thung Yai, and Prince Bernhard of the Netherlands, founder and former president of the
WWF. Just before the Nam Choan Controversy reached its peak, Thailand had ratified the World Heritage Convention
in December 1987. During a visit to Thailand in February 1988, Prince Bernhard had raised his concerns about the
dam project in the wildlife sanctuary, emphasizing particularly the interest of the WWF in having the area declared a
World Heritage site, which would require giving up the dam project. After the project had been shelved, student groups,
NGOs and academics again pushed the idea, fearing the dam project might be revived – something which seemed to
be less probable in a World Heritage site.
253
the anti-dam movement was not only a remarkable victory for conservation in Thailand but also
a milestone for the development of Thailand’s civil society and the process of democratization.16
However the Karen people living in the area to be flooded by the Nam Choan Dam never had a
voice of their own in the debate. For the so-called Thienchai Committee, which was established by
the government to decide on the project and predominantly included proponents of the dam, their
existence was irrelevant. Their interests were partly brought to the debate by NGOs and journalists
but hardly appeared as an important argument, very much in contrast to the forests and wildlife,
which finally emerged as the crucial factors.
On behalf of the Royal Forest Department, the proposal for the nomination of Thailand’s first
natural World Heritage site to UNESCO was written by two people who had been outspoken
opponents of the dam in the Nam Choan controversy: Seub Nakhasathien, chief of the Huai Kha
Khaeng Wildlife Sanctuary, and Belinda Stewart-Cox, who had done research as a biologist in
Huai Kha Khaeng.17 Quite predictably, the Karen in Thung Yai were not included in the processes
of elaborating the proposal. When the two wildlife sanctuaries of Huai Kha Khaeng and Thung
Yai Naresuan were nominated together and subsequently inscribed as a Natural World Heritage
site in December 1991, the ‘outstanding universal value’ was justified by the extraordinarily high
biodiversity due to its unique location at the junction of four biogeographic zones, as well as its
size and “the undisturbed nature of its habitats”. Despite this “undisturbed nature”, the nomination
document defined the people living in Thung Yai and Huai Kha Khaeng as a threat to the sanctuaries
and announced the resettlement of the remaining villages in the near future.18
The lead-up to the nomination had already seen a considerable amount of coerced resettlement
of communities from both Huai Kha Khaeng and Thung Yai Naresuan. Karen villages in Huai Kha
Khaeng had been removed in the 1970s when the Wildlife Sanctuary was established and when the
Sri Nakarin Dam was built and later flooded their settlement areas.19 During the 1980s, most villages
of the Hmong ethnic group were removed from the Huai Kha Khaeng and Thung Yai Naresuan
wildlife sanctuaries.20 The resettlement of all remaining villages was stipulated in the management
plans for the sanctuaries, drafted in the late 1980s21 and adopted by the RFD in 1990, following
an established policy of relocation of settlements from protected areas. When the nomination for
a World Heritage site was prepared in 1990, there remained four Hmong villages in the north-east
of the proposed site, some Thai villages which had only recently moved into the proposed buffer
zone along the eastern border of Huai Kha Khaeng, and around 16 Karen villages in Thung Yai.
16 Buergin and Kessler 2000.
17 Seub committed suicide on September 1, 1991. Belinda Stewart-Cox commented on his death by reproaching his
superiors at the RFD: “Seub’s death was suicide – an act of despair – but it might as well have been murder. When
he needed the support of his superiors to do the job they had asked him to do – stop the hunting and logging that was
rampant in Huai Kha Khaeng at that time, master-minded by police and military officials – it was withheld. A terrible
betrayal.” (Stewart-Cox 1998).
18 Nakhasathien and Stewart-Cox 1990, pp. 44-45.
19 Jørgensen 1996.
20 Eudey 1989; MIDAS 1993.
21 Kutintara and Bhumpakhapun 1988, 1989.
254
The imminent relocation of all these communities was announced in the nomination documents.22
This was noted – but not criticized – in IUCN’s evaluation of the nomination,23 and accepted by the
World Heritage Committee without comment when it decided to inscribe the property on the World
Heritage List.24 While the relocation of the Hmong and Thai villages was accomplished in the early
1990s, the plans to remove the Karen from Thung Yai provoked strong public criticism and forced
the RFD to reverse its resettlement scheme for the time being. Nevertheless, the objective to drive
the Karen out of the sanctuary remained strong within the agency.25
Guarding a global heritage not only brought prestige to the Nation and the Royal Forest
Department but also the prospect of economic assets as well as increasing political importance for
the sanctuaries. Immediately after the declaration, international organizations, in cooperation with
national partners, began to plan projects in and around the sanctuaries. The most prominent and
most important in terms of ‘economic weight’ was a joint project of the World Bank and the Ministry
of Agriculture, designed to improve biodiversity conservation and protected areas management in
Thailand. The pre-investment study for the project was criticized by NGOs in Thailand who disliked
its narrow conservation perspective, its top-down approach and the high costs of the project.26 The
negotiations between World Bank, state agencies and NGOs focused on the controversial issue of
resettlement.27 The study cautiously argued against resettlement in the specific case of the Karen
villages in Thung Yai, although the option for resettlement was kept open and a whole chapter of
the study devoted to its implementation. The negotiations only gradually led to limited agreement,
and the NGOs refused to cooperate on a project based on the pre-investment study.28 Even though
the affected Karen people did not have a voice of their own in this debate, their interests were
considered for the first time.
As resource conflicts between Thai lowlanders and ‘hill tribes’ heated up in the late 1990s, the
RFD, under its new Director General, took up the offensive again in Thung Yai. On April 13, 1999,
22 Nakhasathien and Stewart-Cox 1990, p. 45; Thailand 1991.
23 IUCN’s Advisory Body Evaluation notes that, “There is a policy to remove the remaining illegal settlements in the
reserve and several have been relocated to date” (IUCN 1991, p. 70). The WCMC datasheet from March 1991,
which is attached to the IUCN Evaluation, states: “Some 3,800 tribal people live within the sanctuary. There are still
four Hmong villages… Since 1987, 2-3 Hmong villages have been moved each year… By 1991 all villages will have
been closed. Sixteen Karen villages (1,826 people) are still resident [in the sanctuary complex], but there are plans to
resettle them.”.
24 UNESCO 1991, p. 29.
25 Buergin 2004, pp. 175-186.
26 MIDAS 1993. The proposed project was to have a timeframe of five years, beginning in 1994. The total project cost was
estimated at US$ 96 million to be covered by a grant of US$ 20 million from the Global Environment Facility (GEF), a
US$ 40 million loan from the World Bank, and funds from bilateral aid donors and the Royal Thai Government.
27 The study had argued against resettlement in the specific case of the Karen villages in Thung Yai Naresuan Wildlife
Sanctuary, albeit in a rather ambivalent way and under strict conservation reservations. The detrimental effects of the
villages and risks to the sanctuary were assessed as relatively low, while their resettlement would supposedly cause
high costs and considerable difficulties.
28 The project was halted after grant funds from the GEF were made conditional on ratification of the Convention on
Biological Diversity (CBD) in July 1994, which Thailand had not yet ratified. In the controversy about the project the
representative of the Bank had tried to exert moderate pressure, indicating that the limited funds of the GEF may go to
other countries if the ratification of the CBD were delayed.
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the Director General himself flew into the wildlife sanctuary, landing with his helicopter at the place
where the Karen had just started to celebrate an important annual religious festival supposed to last
for three days. The Director General demanded an end to the ceremonies. Soon after, soldiers burned
down religious shrines of the Karen. From April 18 to May 12, soldiers and forest rangers went to the
Karen villages, demanded that they stop growing rice, demolished huts and personal belongings,
and burnt down a rice barn.29 Throughout the following months, efforts to convince the Karen people
to resettle ‘voluntarily’ continued. Military officials prohibited agricultural activities and prevented
villagers from using their fields. They allegedly even confiscated identity cards and house registration
papers while they raided villages, arresting people without warrants and holding them for days, and
removing families without Thai identity cards. Even though the Senate Human Rights Panel criticized
the incidents, RFD and the military continued their joint resettlement programme in November 2000,
announcing further relocations of families as well as the preparation of the resettlement area for all the
villages.30 The Karen oppose any relocation from their lands, a position expressed in detail during a
comprehensive household survey conducted in 1996/97 in which they almost unanimously expressed
their wish to stay in Thung Yai in the face of ongoing efforts to evict them from their homeland.31
Since the RFD had to delay its resettlement plans regarding the remaining Karen villages
in Thung Yai in the early 1990s due to public pressure, it concentrated on the elimination of the
traditional land-use system of the Karen by prohibiting the use of fallow areas older than three
years.32 In the longer term, these restrictions will lead to the breakdown of the traditional land-use
system, as the soils under constant use rapidly lose their productivity. In the villages where control
on the part of the RFD and the military has been most effective, people were already reporting
decreasing yields in the second half of the 1990s. In 2002, the RFD also began planting tree
seedlings on swidden fields in some villages,33 at the same time announcing in Thailand’s periodic
report to UNESCO that: “If Karen villages inside the WH zone exert increasing demands on natural
resources in the park, relocation will be conducted”.34
The human rights implications of the resettlement programme were overlooked by both the
World Heritage Committee and IUCN during their examination of the nomination proposal in 1991,
as well as during their review of Thailand’s periodic report on the state of conservation of the
sanctuaries in 2003. This happened even though the Thai government has never been reticent in
explaining to IUCN and the World Heritage Committee that the involuntary resettlement of longsettled communities is part of its management strategy for the sanctuaries. The Committee has
29 When these events became public, the Director General of the RFD downplayed his role in the incidents, at first
denying any military actions at all. In contrast to the Director General, the commander of the military troops involved
seemed rather proud of the achievements. He declared the operation a ‘pilot project’ of the new alliance between the
military and the RFD agreed upon in May 1998, and exemplary in their joint efforts to prevent forest destruction.
30 For details and references regarding evictions and oppressions in Thung Yai see Buergin 2004, pp. 159-200.
31 Buergin 2002a, pp. 290-293.
32 Even from an external utilitarian conservation perspective, the resettlement of the Karen and the prohibition of
their subsistence-oriented swidden system is unreasonable. Assuming a mean fallow period of 10 years, the total
agricultural area in the sanctuary, including fallow areas, only accounts for about 1% of its area.
33 Steinmetz, personal communication February 2002.
34 Thailand 2003, p. 234.
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never questioned this although it is demonstrable that the Karen in Thung Yai – far from being a
threat to its continued existence – have long been an integral part of a complex eco-social system
in which they shape and manage their environment in Thung Yai. 35
Local resistance and transnational alliances
Forced to choose between being charged with being forest destroyers ‘provoking’ relocation or facing
severe subsistence problems, the only possibility for the Karen to adapt to the restrictions on their
swidden system – apart from trying to conceal their fields – seems to be ‘modernization’. They can
either try to increase the productivity of the fields, using fertilizers and pesticides (which most of them
cannot afford), or turn to cash cropping in, or wage labour outside, of the sanctuary. Intensification of
agriculture and cash cropping is already supported by some of the government institutions and NGOs
working in the sanctuary. Most of the Karen in Thung Yai reject these efforts, however, and are trying
to carry on with their subsistence farming. Furthermore, intensification of land use, cash cropping and
increasing market orientation – that is, ‘modernization’ – jeopardizes their reputation as ‘forest people
living in harmony with nature’ on which their claim to remain in the sanctuary is based.
A concept of ‘benign environmentalists’ has gained strength in international debates on
environment, development and human rights since the 1980s, which conceives of traditional
or indigenous people rather as partners in biodiversity conservation than as culprits or foes. In
Thailand, such an alternative image, in contrast to the still prevailing stereotype of the forestdestroying hill tribes, has come to be assigned to at least some of the ethnic groups in the uplands
– prominent among them the Karen. Here, this image emerged in rising conflicts towards the end
of the 1980s when an emerging peasant movement, concerned academics and NGOs – resisting
resettlement policies in forest reserves, eucalyptus plantations, illegal logging and corruption –
developed a community forest concept as an alternative perspective and a counter model to the
conservation concept and commercial reforestation approach of the RFD and big agribusiness
companies. In Thailand, as well as on an international level, this alternative stereotype meets with
reproaches from various sides as being partly fictional, over-generalizing, or in violation of people’s
right to development.36 However, far from being ‘comfortable’ for the Karen, this positive image of
‘benign environmentalists’, attributed to the Karen in Thung Yai in parts of national and international
public discourse, is presently the only position in these disputes to which they can relate at least to
some degree. As long as their inherent land rights to the area are not acknowledged and the legal
basis for their continuing settlement in national Thai law is ambiguous, this seems to be their most
important asset in the debates that will decide the future of their villages.
So far, the Karen in Thung Yai have had no chance to participate directly in the national and
international discourse and decision-making regarding their homeland, including its declaration as
part of a wildlife sanctuary and a World Heritage site. In their encounters with state agencies, they
35 Boonpinon 1997; Steinmetz 1999; Buergin 2002a, 2004; Delang and Wong 2006.
36 Regarding the ambiguities of this stereotyping, see e.g. Buergin 2003a; Forsyth and Walker 2008.
257
frequently feel powerless and without any rights. Open resistance to continuous repression and
acts of violence on the part of the RFD and military officials is difficult for the Karen, not least due
to specific cultural frames of behaviour and historically grounded inter-ethnic relations between
Karen and Thai. They have the impression that their rights and concerns are not relevant in the
national and international discourses about their homeland. A strong feeling prevails among them
that they cannot communicate their own view, that they have to use words, arguments and ideas
that are not really their own while trying to justify their claims, even with their Thai allies among the
peasant movement, NGOs and activists. The Karen conceive of these ‘communication problems’
not predominantly as language problems, even though many of the elder Karen have only limited
competence in the Thai language, but attribute them to different cultural contexts.
Almost all of the Karen in Thung Yai believe that resettlement is neither justified nor desirable
but they do take different positions towards the external influences and the resettlement threat.
There is a rather small group, including most of the Phu Yai Ban (the village heads in the context
of the state administrative system) which is open to ‘moderate modernization’ while trying to
retain a Karen identity. The vast majority is rather more reluctant to engage in ‘development’ and
‘modernization, preferring to ‘live like our grandparents did’ as a common saying goes. Among
them there are marked differences in their reactions to the external influences. A rather large
group, who could be labelled ‘extroverted traditionalists’, including many influential elders as well
as young people, is trying to shape the change and resist the threats. They are doing so by trying
to strengthen and revitalize Karen culture and identity as well as seeking support and advocacy
outside of Thung Yai. Another group of more ‘introverted traditionalists’ is likewise focusing on
strengthening ‘traditional’ Karen culture but invoking millenarian and more ‘exclusive’ frames of
Karen culture to a higher degree, avoiding transcultural exchange and support.
Despite these differences in position and strategy, all these groups wish to remain in their villages
as well as to protect their homeland and way of life. Furthermore, they all refer to the same specific
cultural frame of values and objectives regarding a ‘decent’ life appropriate to a Karen living in Thung
Yai. Sharpened – but not created – in the clashes with external actors and influences, this conception
of specific Karen values and objectives focuses on the concepts of ‘modesty’ as opposed to ‘greed’,
‘harmony’ in contrast to conflict, as well as ‘spiritual development’ versus ‘material development’.
The counterpart to these concepts is quite obvious and explicitly named by the Karen as such. It is
primarily the ‘modern’ Thai society which is increasingly ‘intruding’ into their traditional living places
and spaces, threatening their cultural particularity and physical existence in Thung Yai.
Modern legacies, national liabilities and indigenous peoples
This article has tried to give a rough idea of the complexity of the conflicts over Thung Yai, where
the local, national and international levels are highly interdependent as well as asymmetric in power.
Transformations on a national and international level involving shifting framings of the ‘problem’
of the Karen in Thung Yai have significantly determined the changing circumstances of the local
communities. In the second half of the 19th century, the economic and political interests of colonial and
258
regional powers in Southeast Asia brought about the demarcation of territorial nation-states according
to Western models. In the context of this national territorialization, Thung Yai and the Karen living there
were enclosed in the ‘geo-body’ of the Siamese nation-state, which at the same time became part
of an international community of states primarily defined in terms of territory and economic relations,
while heterogeneous social and physical spaces were merged in the modern nation-state.
In the first half of the 20th century, the development of a specific national identity of this state
focused on a common language, Buddhism and the monarchy. The Karen in Thung Yai, who had
been incorporated into the state spatially, were now excluded from its ‘people-body’ in the context of
this nationalization process and disappeared from the political agenda. Since the middle of the 20th
century, growing international and national interests in the resources and people of the peripheral
areas of the state – in the context of modernization objectives and the fight against communism – have
resulted in the extension of state institutions into these areas as well as their exploitation for national
economic development. The people living there were now predominantly conceived of as backward
problem groups or alien troublemakers in conflict with national interests, which had to be controlled
and modernized. After the environmental costs of this economic development became obvious in the
1980s, the forests of these peripheral areas were declared precious wilderness and biodiversity assets
of global significance, which had to be protected against encroachments from local people in the context
of a global ‘ecologization’ of peripheral areas of modernity. In this frame, the Karen in Thung Yai became
a disruptive factor in a natural global heritage, requiring strict monitoring as long as their removal was
not feasible. When Thung Yai was declared a natural World Heritage site in 1991, the Karen were seen
as a ‘disruptive factor’. In contrast, the studies done there since then clearly indicate that the Karen are
an integral part of Thung Yai. With their sustainable land-use system, they have shaped the sanctuary
considerably over a long time and even increased its biodiversity. In their culture, they keep a unique
body of knowledge about their natural environment with which they maintain a specific and deep spiritual
relationship. As noted earlier, the Karen have unanimously expressed their desire to remain on their
lands and reject continuing efforts to relocate them.
Pressure to exclude or assimilate highland peoples, including their removal from protected
areas, is still strong in Thailand. Over the last 30 years, however, Thailand has undergone
a remarkable process of democratization and enacted a constitution in 1997 that explicitly
recognizes the rights of local communities to cultural self-determination as well as to the use of
local resources.37 This may provide political space for the Karen to seek a greater level of control
over their future. Unfortunately, these commitments are not always easily realizable. Furthermore,
their interpretation is often contested and subject to social bargaining, whereby weaker social
groups may be at a disadvantage. The Community Forest Bill and conservation policies are
a case in point, where these problematic asymmetries urgently need to be reconsidered and
amended, specifically regarding the vulnerable position of highland peoples.
37 Thailand 1997. Section 46 states: “Persons so assembling as to be a traditional community shall have the right to
conserve or restore their customs, local knowledge, arts or good culture of their community and of the nation and
participate in the management, maintenance, preservation and exploitation of natural resources and the environment
in a balanced fashion and persistently as provided by law.”
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A recent positive step was the approval of the government project “Recovering the Karen
Livelihood in Thailand”, proposed by the Ministry of Culture and adopted via a cabinet resolution
of the Royal Thai Government in August 2010. The resolution recognizes the particular ethnic
identity and culture of the Karen people, and seeks to actively support them in perpetuating
this culture, including their rotational farming system and traditional land management, while
deploring “the arrest and detention of the Karen people who are part of local traditional
communities settled on disputed land which is traditional land used for making a living”.38 For
the Karen communities in Thung Yai specifically, the resolution recommends the implementation
of a “special cultural zone” intended to support the transmission of cultural heritage.39 The
resolution also recommends the “promotion of the Karen rotational farming system to become
a world cultural heritage” (presumably under UNESCO’s 2003 Convention for the Safeguarding
of Intangible Cultural Heritage).40 The recommendations of the cabinet resolution reveal a new
sensitivity to the problems and indicate a sincere intention to approach them; however, it remains
to be seen how the project will be realised.41 The case of the Karen in Thung Yai, as well as the
more general problem of integrating the ‘hill tribes’ into Thai society, remains a controversial
challenge for democratic forces in Thailand.42
In this type of globally widespread conflict between the livelihood interests of local people
and national or global interests in nature conservation and ‘modernization’ – which may be
38 The cabinet resolution further made the following recommendations: “Repeal the declarations concerning protected areas,
reserve forests and settlements of Karen people which already have the capability to prove that their settlement, living on
and use of these lands has continued for a long time or since before the declaration of laws or policies that now cover these
areas”; “Support and recognize the rotational farming systems which belong to the Karen ways of life and livelihood, and
which support the sustainable use of natural resources and self-sufficiency”; “Support self-sufficiency or alternative agriculture
instead of cash crop production or industrial agriculture”; and “Support and recognize the ways of using the land and the
management of local traditional communities, e.g. through issuing communal land titles” (see Thailand 2010).
39 The Lai Wo Sub-district (Sangkhla Buri District, Kanchanaburi Province) has been designated as one of four pilot
areas. Most of the villages which constitute this Sub-district are located within the Thung Yai Wildlife Sanctuary where
they comprise about 64% of the Karen population in Thung Yai. Considering the close relationship of these villages to
the other Karen villages in the eastern part of the sanctuary (Sub-district Mae Chan, Umphang District, Tak Province) it
seems desirable to include all the Karen villages in Thung Yai into this ‘cultural zone’. Furthermore, the villages in the
eastern part of Thung Yai are closely related to the Karen village Le Taung Hkoo in the Umphang Wildlife Sanctuary,
which is also recommended as a ‘special cultural zone’. Together, these villages constitute what the Karen in Thung
Yai identify as ‘thoung bou tai’, their homeland and cultural community (see text above).
40 The 2003 Convention explicitly recognizes the “deep-seated interdependence between the intangible cultural heritage
and the tangible cultural and natural heritage” and was adopted “Considering that existing international agreements,
recommendations and resolutions concerning the cultural and natural heritage [such as the 1972 World Heritage Convention]
need to be effectively enriched and supplemented by means of new provisions relating to the intangible cultural heritage”
(Preamble). If the Karen rotational farming system is indeed recognized under the 2003 Convention, Thung Yai could
potentially become a ‘model’ World Heritage site, illustrating the interaction between the two (1972 and 2003) Conventions.
41 Recent violations by the National Park staff and the Thai military against Karen people living in the Kaeng Krachan
National Park in 2011 indicate that at least some state authorities are ignoring the resolution and still following more
familiar repression and resettlement policies (see AIPP 2011).
42 Evident, supposed or assigned differences between social groups are frequently highlighted and exploited in these
struggles over resources, redistribution, identity, social status and power. Not least, these struggles are significantly
framed and negotiated in discourses about national identities and cultural diversity, which unavoidably invoke disputed
conceptualizations of modernity. (See e.g. Keyes 2002; Connors 2005.)
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termed conflicts over biocultural diversity43 – not only livelihoods and homelands are at stake
but also issues of local identity and self-determination as well as cultural diversity and selfconceptualizations of modern societies. The ideological and legal framings of these conflicts
over biocultural diversity are predominantly negotiated in very heterogeneous discursive and
political spheres at the national and international level.44 It is here that local people’s chances of
resisting transgressions and defending their rights are determined, even though these people
frequently have no access to the discourses and institutions that are framing their circumstances
and chances. Very often, they are not even represented in any appropriate way in political
processes and decisions regarding their living places. However, these discourses also provide
new chances for them to defend claims to local resources and particular identities.
In particular, the concept of ‘indigenous peoples’ has become a powerful idea, adopted as a
legal concept or operational category by important international institutions such as the United
Nations, ILO, the World Bank and the Asian Development Bank, and increasingly acknowledged
by many nation states. It emphasizes indigenous rights to lands, territories, resources and selfdetermination45 and provides an appealing reference point regarding identification, compensation
and action for many marginalized peoples at the fringes of modern societies. However, the
concept often provokes considerable caveats at the national level, particularly among Asian
governments where – in Southeast and East Asia – only the Philippines and Japan accept the
use of the term to describe parts of their populations.46
The Thai state emphasizes its ‘un-colonized’ history47 and, until recently, pursued an
ambiguous policy towards the ‘hill tribes’, conceiving of them either as illegal immigrants to be
expelled or proclaiming their total assimilation if eligible for naturalization.48 It is hardly interested
in recognizing any indigenous peoples in its own territory. In a reply to the UN Special Rapporteur
on the situation of human rights and fundamental freedoms of indigenous peoples in February
2003, the Government of Thailand noted that the highland peoples were not considered indigenous
43 Buergin 2009, 2010.
44 Interrelations between biological and cultural diversity – increasingly labelled biocultural diversity – have come into the
focus of academic, political and economic interests and discourses since the late 1980s. In this context, the protection
of cultural diversity is often conceived of as a promising means for the conservation of biological diversity. Furthermore,
the worldwide loss of cultural diversity is causing increasing concern among scholars and activists and even provoking
commitments on the part of international organizations such as UNESCO (2010) or global environmental organizations
such as WWF (e.g. Oviedo et al. 2000) and IUCN (IUCN and WCPA 2003) with regard to the protection of cultural diversity.
45 See, for instance, the 2007 United Nations Declaration on the Rights of Indigenous Peoples.
46 See e.g. Kingsbury 1998; Erni 2008.
47 In Asia, European colonialism only rarely took the form of territorial conquest but rather resulted in radical transformations
of regional societies by promoting or enforcing the formation of territorial nation-states and inducing modernization
processes adopted and pursued by regional elites. Even though the pre-colonial Tai states never became European
colonies, the formation of the modern Thai state was deeply influenced by European colonialism, which is equally true
for the situation of the diverse Karen groups in mainland Southeast Asia from the first half of the 19th to the middle of
the 20th century. In the case of the Karen in Thung Yai, evictions, repression and marginalization cannot be directly
traced back to territorial occupations by European colonial powers but were predominantly caused by regional powers
in the wake of colonial hegemony in mainland Southeast Asia as well as the spreading of a ‘culture of modernity’ deeply
rooted in European and colonial history.
48 See Buergin 2000.
261
peoples under domestic law,49 and when the World Heritage Committee considered a proposal to
establish a “World Heritage Indigenous Peoples Council of Experts” as an advisory body to the
Committee in 2001, Thailand’s representative disapproved of the idea arguing that “indigenous
issues are a domestic, national question, and are best handled on that level”.50
However, United Nations human rights bodies and mechanisms, such as the UN Special
Rapporteur on the Rights of Indigenous Peoples or the Committee on the Rights of the Child, clearly
conceive of the so-called hill tribes or ethnic minority groups of Thailand as indigenous peoples.51
Moreover, in Thailand, Karen increasingly identify themselves as ‘indigenous’ and participate in
international organizations and networking in support of indigenous rights. Several of the associations
of ethnic minority groups in Thailand are members of the Asia Indigenous Peoples Pact (AIPP),
including the Assembly of Indigenous and Tribal Peoples of Thailand, the Hmong Association for
Development in Thailand, the Inter Mountain Peoples Education and Culture in Thailand Association
(IMPECT), and the Karen Network for Culture and Environment. Based on distinct ethnic identities,
they share common experiences of discrimination and marginalization within nation-states and try
to assert their rights to self-determination as well as land, territories and resources which, since the
1980s, are being increasingly challenged by national and global claims for nature conservation.
National conservation policies and laws worldwide have long been considerably influenced by modern
ideas about nature conservation and protected area management, focusing on ‘fortress-conservation’
approaches. The rights and interests of local people in or close to protected areas have only recently
been acknowledged, and these revisions are still contested. However, in international environmental
discourses and institutions, principles of free, prior and informed consent as well as participation and
cooperative resource management approaches are now approved standards regarding people in
protected areas.52 Protected areas for nature conservation are increasingly subject to international
and transnational regulations regarding stakeholders and rights-holders – World Heritage sites being
a particularly prominent example. This provides new opportunities for local people by appealing to
international standards and advocacy. International standards clearly support the right of the Karen to
live in their traditional and customary lands (in Thung Yai) and their forced resettlement is not a legitimate
option. Having adopted Thung Yai as a global heritage, concerned international organizations (including
UNESCO, the World Heritage Committee and its Advisory Bodies) should disapprove of the pressures
and violence towards the Karen in Thung Yai and insist on their full and effective participation in decisionmaking processes, in accordance with their rights under international law.
Unfortunately, these international standards are often only hesitantly adopted on the national
level, frequently encounter considerable national reservations and are open to interpretation and
negotiation.53 Furthermore, regulations regarding UNESCO natural World Heritage sites in parts
49 See Commission on Human Rights 2004, p. 18.
50 World Heritage Centre 2001, p. 2.
51 See e.g. Commission on Human Rights 2003, para. 22; Human Rights Council 2008, para. 464 ff.; or Committee on
the Rights of the Child 2006. Also see UN DESA 2008, pp. 8, 28.
52 See for instance Convention on Biological Diversity, Art. 8(j); IUCN et al. 1999; CBD COP7 2004.
53 For example, when the World Heritage Committee voted to support customary law and customary management by
‘traditional’ or indigenous peoples as a sufficient basis to guarantee the protection of natural World Heritage sites,
Thailand disassociated itself from the decision (UNESCO 1999, pp. 26, 56).
262
still fall short of these standards and evoke approaches to nature conservation that assume an
inherent antagonism between ‘man and nature’. However, these conceptualizations and provisions
are debated and there are strong arguments for a revision acknowledging and supporting rights of
local people living in and close to natural World Heritage sites in the light of UN commitments to
universal human rights and the rights of indigenous peoples, as well as the significance of cultural
diversity for the protection of biodiversity.54 The establishment of the so-called Cultural Landscapes
category by the World Heritage Committee reflects an awareness of some of these problems as well
as a new attentiveness to interrelations between ‘nature’ and ‘culture’.55 The history of the Karen in
Thung Yai and their relationship with their homeland suggests the need for a reconsideration of the
status of Thung Yai, which may be better conceived of as a Cultural Landscape World Heritage site.
Conclusions
The Karen in Thung Yai not only have to face the threat of eviction from their homeland but also
the destruction of their ‘culture’, their local identity and their particular way of life in Thung Yai. They
have consistently asserted their desire to remain in Thung Yai and to pursue a particular way of
life there as Karen people but their legitimate interests and rights are largely disregarded and they
have never been given the possibility of defending these rights on their own terms.
This paper cannot provide a ‘Karen view’ of the conflicts over Thung Yai. It is rather the
perspective of a scholar who, whilst having some first-hand experience, is looking at the problem
from the outside, based on a concern for the protection of human rights as well as cultural and
biological diversity. His viewpoint is that of his own ‘culture of modernity’, which he is interested
in critically exploring. From such a perspective, the case of the Karen in Thung Yai – as well as
the situation of other ‘local’, ‘traditional’, ‘tribal’, ‘native’ or ‘indigenous’ peoples at the periphery
of modern societies – is essentially interrelated with issues of modern identity and hegemony.
To enable them to maintain a particular self-determined way of life, perpetuating global cultural
diversity requires, not least, a culture of modernity which is attentive to its hegemonic and violating
relations with non-modern groups, supportive of ways of life different from its own, and able to
reconsider universalistic claims to modernity.
The moral and legal obligations of modern societies and international organizations already
provide standards by which to assess infringements in the case of the Karen in Thung Yai and
reason to call for changes in the approach of the government to the management of this area. Due
to both their history in Thung Yai as well as national and international commitments to human rights
and conservation ethics, the right of the Karen to remain in Thung Yai has to be acknowledged
without reservation. The Thai government has taken some steps towards such a realization in the
cabinet resolution “Recovering the Karen Livelihood in Thailand” (August 2010). This resolution
should be implemented in cooperation with the Karen people as soon as possible and its objectives
should be extended to all indigenous groups in Thailand.
54 Disko 2010; Hay-Edie et al. 2011.
55 For example World Heritage Centre 2003; Taylor and Lennon 2011.
263
Participatory mapping of Karen land use areas in the Thung Yai Naresuan Wildlife Sanctuary, together with
Wildlife Fund Thailand (WFT). Photo: Reiner Buergin
With specific regard to the situation in Thung Yai, the Karen should be integrated into the
management and decision-making processes concerning the sanctuary as well as the reporting to
UNESCO. It is important to enable the Karen to participate in these processes and tasks through their
own political institutions and in accordance with their own customs, which are adapted to their way of
life in Thung Yai but which are not currently acknowledged in their interactions with the administrative
agencies. As part of this, already existing interests and activities in participatory research, monitoring
and environmental education in the sanctuary should be supported and expanded.56
More broadly, and external to the situation in Thailand, the monitoring of the World Heritage
sites conducted by the responsible international organizations urgently needs to be improved
to conform to their own standards and regulations. Regulations concerning the implementation
and monitoring of World Heritage sites have to be reviewed to take account of international
commitments, principles and declarations regarding the rights of indigenous peoples and the
conservation of cultural diversity.57 
56 Steinmetz et al. 2006.
57 Disko 2010.
264
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269
Shiretoko Natural World Heritage Area
and the Ainu People
Ono Yugo1
Introduction
T
he Shiretoko peninsula, stretching out to the north-east of Hokkaido, the northernmost
island in the Japanese archipelago, is the ancestral home of the Ainu people. In 2005
it was inscribed on the World Heritage List as a natural site of outstanding universal value.
This inscription process took place largely without consultation with, or participation from, the
Ainu people in Japan. This article examines the reasons for this lack of consultation, including
the historic marginalization that the Ainu have faced in Japan and the contemporary situation
whereby the Ainu people are beginning to claim back their rights as indigenous people in the
islands.
It is not simply the nomination and inscription process in which the Ainu have been largely
ignored, but the continuing management arrangements used to preserve this place of natural
1
In accordance with Japanese convention, all the Japanese names are given with the family names first followed by the
given names.
Left: A ritual calling out to all of nature (fire, land, water and forest – collectively called ‘Kamuy’ in Ainu) conducted in Shiretoko by Ainu leader Yuki Koji in an ecotour organized by SIPETRU. Photo: SIPETRU
270
beauty and sacred areas. This article will look at the existing management arrangements and
provide some recommendations as to how these arrangements could be changed to better
include the Ainu in the management of their ancestral places.
The Ainu people: a brief history
The Ainu are an indigenous people living in Japan. Ainu means ‘human’ or ‘people’ in their
language. Although now settled entirely in Japan, the Ainu previously inhabited a wider area of
north-east Asia, including Kamchatka, the southern part of Sakhalin, Hokkaido (Ainu Mosir in the
Ainu language) and the northern part of Tohoku (the north-eastern area of mainland Japan). Some
anthropological studies have pointed out similarities between the Ainu and the Neolithic Jomon
people who first settled the Japanese archipelago between 14,000-12,000 BC. However, while
the Jomon culture was found throughout the archipelago, the Ainu appear to have emerged from
a wave of migration into the north of Japan by a people called the Okhotsk, who mingled with
the existing settlements.2 Since the Okhotsk people (migrants from northern Sakhalin or Siberia)
invaded Hokkaido and lived there between the third and twelfth centuries, archaeologists believe
that the Ainu originated in this period. However, the distribution of place names in the Ainu language
in the northern part of Tohoku overlaps with that of a special type of earthenware that appeared
both in Hokkaido and Tohoku in the third and fourth centuries. This fact suggests the Ainu-speaking
people migrated from Hokkaido to Tohoku with their earthenware technique during that period.
The origin of the Ainu-speaking people can be dated to around this period, and most possibly
with earlier links to the Jomon period. The earliest Ainu cultures were dependent on subsistence
activities, predominantly salmon fishing, hunting and plant gathering. Ainu culture was modified
by contact through trade and war with the Okhotsk people, the Wajin (non-Ainu ethnic Japanese
of the main island), neighboring North Asian peoples and the Chinese. The main trade materials
were natural resources such as fur, brown bear gallbladder, sea tangle and eagle feathers. The
Ainu traded these materials for rice, tobacco, alcohol, silk clothes and lacquer-ware. The trade
nourished the Ainu people and several different tribes of Ainu occupied different regions all over
Hokkaido between the twelfth and seventeenth centuries. In the fourteenth century, they invaded
northern Sakhalin and into the mainland Asian continent, fighting against Mongolia in a war that
lasted for more than forty years (1264-1308) before they were finally defeated.
With the invasion of southern Hokkaido by the Japanese in the fifteenth century, the
independence of the Ainu began to erode. Losing the battle of Koshamain in 1457 weakened
the force of the Ainu although they retained their independence. In 1604, the Japanese (Wajin)
established the Matsumae Domainal Government on the south-western margin of Hokkaido. This
2
Recent DNA analysis shows that the DNA composition of the Ainu can be explained as a hybrid of the Jomon and
Okhotsk peoples’ DNA. See Adachi et al. 2007; Sato et al. 2007. In comparison, the modern Japanese of the main
island share genetic stock with the Jomon and Yayoi peoples (migrants from the Asian continent from 400-300 BC).
See Hanihara 1991.
SHIRETOKO NATURAL WORLD HERITAGE AREA AND THE AINU PEOPLE
271
increased conflict between the Ainu people and Wajin settler populations. A turning point in relations
between the Wajin and the Ainu was the Shakushain battle of 1669. After defeat in that battle, the
Ainu were forced to obey the Matsumae Domainal Government, and they began to lose their political
and economic autonomy. The Shogun government in Edo (today’s Tokyo) supported this trend. The
Ainu lost their independent right of trading, and their economy was brought under the control of the
Japanese. The Kunashiri-Menashi war of 1789 was the final war between the Ainu and the Wajin and
took place close to Shiretoko. Their defeat in this war led to the loss of their power in the Shiretoko
peninsular. Since the Shiretoko area is rich in salmon, the Wajin monopolized the catching of salmon
and this was one of the reasons why the Ainu inhabitants disappeared from what is now the World
Heritage Area of Shiretoko. Continued economic dependency caused the Ainu to become far poorer
during the two-hundred-year period from the seventeenth to the nineteenth century.3
The Ainu completely lost their own governance after Japan colonized Hokkaido under the rule
of the Meiji Emperor in 1868. Over the following 30 years, the Ainu lost all of their rights without any
treaties being concluded between the Ainu and the occupiers. In 1899, a discriminative law called
the Hokkaido Former Aborigines Protection Act was promulgated, and with it came a government
policy that was strongly assimilative, designed to weaken the Ainu language and culture.
Present situation of the Ainu in Japanese society
According to government figures from 2006, the Ainu population in Hokkaido was roughly 24,000.
In addition to this population in Hokkaido, several thousand Ainu lived in the Tokyo area.4 Actual
Ainu population numbers may be more than ten times larger, however, as many Ainu hide their
identity because of the discrimination against the Ainu people which continues today. The Ainu
are still under tremendous pressure to assimilate into the majority Japanese population, and any
recovery of their indigenous rights, language and culture is obstructed by government policy. Since
being invaded by the Japanese, the Ainu have lost their basic rights, including their rights to land
and the free use of natural resources. They lost their economic base under the rule of the Japanese
Empire and the decline of the Japanese Empire in 1945 did not change this basic situation.
An organization called the Hokkaido Ainu Association was established in 1945 as the first ethnic
alliance of the Ainu people, but it was not a politically or economically independent association.
Rather, it was established under the control of the Hokkaido prefectural government and its main
objective was to distribute welfare from the government to the Ainu people.5 This created a new
system of economic dependency on the part of the Ainu on the government. The Hokkaido Ainu
Association changed its name to Hokkaido Utari Association in 1961. Utari means ‘fellow Ainu’ in
the Ainu language. One of the reasons for the name change was that many Ainu disliked using the
word Ainu, because this word evoked a bad feeling of discrimination.
3
4
5
Walker 2001.
2006 Survey of Ainu Livelihood conducted by the Hokkaido prefectural government (cited in IWGIA 2013, p. 222).
Emori 2007.
272
In 1984, the Hokkaido Utari Association proposed that a new law concerning the Ainu people be
adopted by the Japanese government. This marked the first attempt by the Ainu to legally recover
their indigenous rights. The Japanese government did establish a committee to draft a new law but
failed to appoint any Ainu members to the committee. In consequence, although the Hokkaido Former
Aborigines Protection Act was abolished and a new law was enacted in 1997, the new law - called the
‘Ainu Culture Promotion Act’6 - does not acknowledge the indigenous status of the Ainu nor their rights
over their natural resources, including their rights to traditional livelihoods such as salmon fishing and
wildlife hunting. It can therefore be said that even with the new law the Ainu people continue to live
under the conditions of the 19th century policies aimed at colonization and assimilation.7
The Ainu Culture Promotion Act did have some positive as well as negative impacts on Ainu
society. Positive impacts included an increase in budget support to Ainu affairs and the creation of a
Foundation for Research and Promotion of Ainu Culture, which financially supports various projects
of the Ainu, including the activities of the Ainu language schools. One of the negative effects
was the increased economic dependency of the Ainu on the government. This was particularly
true of the Hokkaido Ainu Association (having changed its name back in 2008), which became
much more attached to the government in order to obtain more funding and to easily implement
projects supported by the government. The government also continued to treat the Association
as the only representative body for all of the Ainu, a position that is highly problematic given the
close governmental relations maintained by the Association. It is clear that the Hokkaido Ainu
Association is not a representative body for all of the Ainu people, most simply due to the fact that
it has only 4,000 members, a small fraction of the total Ainu population. It also continues to define
itself geographically, as the ‘Hokkaido’ Ainu Association, and this means that Ainu living outside of
Hokkaido cannot hold membership of the Association.8
In response, Ainu living in the Tokyo area have established their own organizations to demand
the recovery of indigenous rights more explicitly than the Hokkaido Ainu Association has done.
The creation of many other Ainu organizations and groups suggests criticism of the Hokkaido Ainu
Association, and several Ainu have left the Hokkaido Ainu Association and joined some of these
other groups. However, these newer groups are not regarded as formal partners in negotiations with
the government. While some of these groups have recently attained NPO (Non-Profit Organization)
status and are now much more empowered than before, in 2004-2005 (at the time of the World
Heritage nomination), these groups were still weak, and most of the information regarding the
nomination was concentrated in the Hokkaido Ainu Association.9
6
7
8
9
Act for the Promotion of Ainu Culture, the Spread of Knowledge Relevant to Ainu Traditions, and an Education
Campaign (Law No. 52, 1997).
Ono 1999b.
This is closely related to the fact that the Association was established in 1945 so that the Hokkaido prefectural
government could distribute welfare to the Ainu inhabitants of Hokkaido. The Hokkaido prefecture still uses the
Association for this purpose and since it cannot offer welfare to Ainu living outside of Hokkaido, it does not want the
Association to change its name or its membership rules. This is supported by the national government, which does not
want Ainu affairs to be nationalized but rather localized in Hokkaido.
Ono 2006.
273
In 2008, Ainu activists achieved a great step forward when the House of Representatives in
Japan (the Diet) recognized the Ainu as an indigenous people. This was an important turning
point in the history of relations between the Ainu and the Japanese government. However, it has
not appeared to accelerate the process of the recovery of Ainu rights. In fact, the “Expert Meeting
Concerning Ainu Affairs”, a council created in 2008 by the Japanese government, had no Ainu
members at first. After receiving strong objections from the Ainu, the government finally included
Kato Tadashi, a director of the Hokkaido Ainu Association, although he was still the only Ainu
among eight committee members.
The World Indigenous Peoples Network: Ainu (WIN-Ainu), an organization established in 2009
by the organizers of the Indigenous Peoples Summit held just before the G8 Summit in 2008,10
sent a message to the Japanese government requesting the creation of a permanent committee
for the recovery of indigenous rights with an equal number of Ainu and non-Ainu members;11 such
a committee has not, however, yet been established.
Shiretoko Peninsula and the World Natural Heritage Area
Shiretoko is a peninsula that protrudes into the Sea of Okhotsk in north-eastern Hokkaido, the
northernmost island of Japan. Severe winters in which thick ice covers the sea from December to
March and ragged volcanic landforms have prevented agricultural development and preserved the
natural ecosystem in its wild state. The dense mixed forest offers good habitat for the brown bear
and Blakiston’s fish owl, two important Ainu gods that are now endangered species.12 The coastline
of the peninsula is rich in globally rare mammals and birds such as Hawker’s least shrew, Steller’s
sea lion, Steller’s sea eagle and the white-tailed eagle.
The peninsula runs from south-west to north-east, following a line of active volcanoes that
extends into the Kuril Islands. Many of these volcanoes exceed 1,500 m and the highest one is
Mt. Rausu at 1,611 m. As the peninsula is less than 20 km wide in most parts, lava rock exposed
to the sea and eroded by wave action has formed steep cliffs that surround the entire peninsula,
while short rivers with steep gradients and many waterfalls flow into the sea. This topography gives
the Shiretoko peninsula a special ecosystem with intimate connections between mountains, rivers
and the sea. These unique natural features were the main reasons why Shiretoko was inscribed as
a World Natural Heritage Area at the World Heritage Committee’s 29th Session in Durban, South
Africa in July 2005.13 The site was inscribed as a ‘natural site’ only, without reference to the cultural
heritage contained within the Shiretoko Peninsula.
The World Heritage Area, including the buffer zone, covers 71,000 ha (48,700 ha of land and
22,300 ha of the surrounding seas) and falls within the jurisdiction of Shari and Rausu towns. It
10
11
12
13
Indigenous Peoples Summit in Ainu Mosir Steering Committee 2008.
Kayano and Akibe 2009.
Ono 1999a.
See UNESCO 2005, pp. 114-115.
274
contains several partially overlapping protected areas, including the Onnebetsudake Wilderness
Area, the Shiretoko National Park, the Shiretoko Forest Ecosystem Reserve and parts of the
Shiretoko National Wildlife Protection Area. Most of the land within the World Heritage Area (38,636
ha) corresponds to Shiretoko National Park, first established in 1964. Human occupation is limited
to only two towns on the inland side of the peninsula: Utoro and Rausu. There are no permanent
inhabitants in any other area of Shiretoko, demonstrating how pristine the peninsula is.
At the domestic level, the World Heritage Area is protected through a number of national laws
and regulations, including the Nature Conservation Law (1972), the Natural Parks Law (1957), the
Law on Administration and Management of National Forests (1951) and the Law for Conservation
of Endangered Species of Wild Fauna and Flora (1992). It is managed by the Ministry of the
Environment, the Forestry Agency, the Agency for Cultural Affairs and the Hokkaido prefectural
government, which are responsible for implementing the various laws and regulations relevant to
the conservation and administration of the heritage site.14 In terms of land ownership, 95 percent
of the land within the World Heritage Area is National Forest, which is administered by the Forestry
Agency.15 In 2009, an integrated management plan for the World Heritage site was adopted which
attempts to simplify the management of the area through better coordination between the many
involved government agencies.16
None of the mentioned laws on national parks or national forests refer to the Ainu people
or mention their rights or roles. The introduction of the Ainu Culture Promotion Act (1997) did
not change anything in this regard because this law aims only to promote the “Ainu culture” as
defined by the government. For example, any modern or contemporary Ainu arts are not regarded
as “Ainu culture” but only their traditional dance, music and embroidery. The Act carefully avoids
any reference to their indigenous rights, land rights and rights of natural resources use. In such a
situation, it is not surprising that the nomination of the Shiretoko World Heritage Area was written
without any involvement of the Ainu people.
Despite such legal blindness, the connection between the Ainu and Shiretoko is a long one.
Not only the name of the peninsula but all the place names in Shiretoko are derived from the
Ainu language. Shiretoko means ‘cape’ (Shir: ‘land’, etoko: ‘end’) in the Ainu language. The place
names illustrate the fact that Ainu people inhabited the entire peninsula in the past. They lived off
the rich natural resources of the peninsula, such as the autumn salmon migration, abundant sea
14 The Agency for Cultural Affairs is involved because of its responsibilities under the Law for the Protection of Cultural
Properties, by which some of the species found on the World Heritage site have been designated as Natural Monuments
because of their significant scientific value to the country.
15 The Japanese National Park system differs from the Western model. The landowner is usually not the Ministry of the
Environment, although they are responsible for the designation and management of the parks (the same is true for
wilderness areas and wildlife protection areas). The biggest landowner is normally the Forestry Agency or, in some
cases, even private paper companies. In such a situation, conflicts can easily occur between the management office
and the landowners. In Shiretoko, a serious conflict took place in 1986-87 on the issue of logging a forest area of
1,700 ha within the National Park. In spite of strong opposition and a campaign against logging, the forest was felled
by the Forestry Agency in 1987. The Ministry of Environment in this case agreed with the logging, based on the result
of an environmental assessment that suggested that there would be no damage to the fish owl, the most important
endangered species living in the Park area.
16 Ministry of the Environment et al. 2009.
275
Map 1: Chashi sites in and around the Shiretoko World Heritage area
mammals, eagles, fish owls, brown bears and deer as well as many different kinds of native plants.
The tail feathers of the Steller’s sea eagle were important trade materials for the Ainu during the
Edo era (1603-1868). Conflicts over the exclusive possession of these natural resources occurred
between Wajin and the Ainu and also within Ainu society, mainly in the eastern part of Hokkaido,
including Shiretoko.17
This history explains the abundance of Chashi sites (Chashi-kot) found along the coast of
the peninsula (Map 1). A Chashi-kot is an archaeological site that was originally used by the Ainu
in the early–modern era (mainly between the sixteenth and eighteenth centuries).18 Chashi are
believed to have been fortified villages, although they may have originated as holy places used
for communicating with the gods. As the wooden buildings and walls of Chashi no longer exist,
only defensive ditches and pits (kot in the Ainu language) used as house foundations remain for
archaeologists to study today (hence the name, Chashi-kot, which is often used in the names of
17 Walker 2001.
18 Kato 2008, 2009; Udagawa 2003.
276
places on the peninsula). Some Ainu people regard the Chashi-kot as sacred sites and wish to
protect them from destruction, although many of them have already been destroyed through the
construction of roads, dams and other public infrastructure.
Neglect of the Ainu people in the nomination process of the Shiretoko World
Heritage Area
On the basis of its wildness and the abundant presence of endangered species, Shiretoko
was nominated to become a World Natural Heritage site in 2004 by the Japanese government.
However, the government completely neglected the Ainu in the process of promoting Shiretoko
as a World Natural Heritage Area. They tried to legitimize this attitude by emphasizing the fact
that there were no Ainu inhabitants in the heritage area at present. They also failed to refer to the
existence of the large number of Chashi in Shiretoko, including those in the World Heritage site
itself, although the Hokkaido prefectural government had a list of Chashi that were excavated or
recognized by archaeologists.
The government’s nomination document and management plan for Shiretoko as a World
Natural Heritage site did not mention the possibility of Ainu cooperation in the management of
the site, despite recognizing the historical relationship that the Ainu have with the site.19 This
was raised in a meeting of the Sapporo Branch of the Hokkaido Ainu Association in 2004, which
appears to have been the first time that the Ainu people recognized the Shiretoko World Heritage
nomination as an issue.
The nomination was prepared by the Japanese Ministry of the Environment, which asked
the Hokkaido prefectural government for cooperation in the nomination process. This is notable
as the Hokkaido prefectural government has a close relationship with the Hokkaido Ainu
Association, exercising some control through funding and project direction.20 The government
controlled the information about the nomination very tightly, and the fact of nominating Shiretoko
was not known among Ainu people generally until a very late stage in the nomination process. It
is possible that some core members of the Hokkaido Ainu Association were in a position to know
about the nomination but it did not become a public issue until Ainu NPOs criticized the neglect
of the Ainu in the nomination process.
19 See Government of Japan 2004; Ministry of Environment et al. 2004. This lack of inclusion of the Ainu notably contrasts
with the following observation in the management plan: “Instead of damaging the nature, the people living in the
peninsula adapted their lives to realize sustainable use of the nature’s bounties and created a unique local lifestyle,
industry and culture. It is essential to study the culture of the Ainu people and the traditional wisdom and skills of the
local residents in order to determine the methods to preserve, manage and realize sustainable use of the natural
environment.” (Ibid., p. 214).
20 In fact, when the Association was first established the secretary general of the Hokkaido Ainu Association was an
officer sent from the Hokkaido prefectural government and this has only recently changed. Now, the secretary general
is a person selected by the Association, although there has not yet been an Ainu in the job.
277
View of the Shiretoko Mountains from Lake Ichiko, Shiretoko National Park. Photo: Martyn Steiner
Ainu NPOs’ efforts to be involved in managing the Shiretoko World Heritage site
Following the Sapporo branch meeting in 2004, Abe Yupo, a leader of Uhanokka-no-kai, an
Ainu NPO, and an executive member of the Hokkaido Ainu Association, sent a personal letter
(not representing the Hokkaido Ainu Association) to IUCN and presented a statement at the UN
Permanent Forum on Indigenous Issues in May 2004 criticizing the injustice of neglecting the
Ainu in the nomination process.21 These actions brought the connection between the Ainu and the
Shiretoko World Heritage site to the attention of IUCN. As a result, when David Sheppard, Head of
the IUCN Protected Areas Programme, visited Shiretoko in July 2004 to examine its natural values
and management planning (as part of IUCN’s Advisory Body Evaluation of the World Heritage
nomination), he expressed a wish to meet with the Ainu people.
However, the Ministry of the Environment and the Hokkaido prefectural government refused
to allow Sheppard to meet with any Ainu people who were criticizing the neglect of the Ainu in
the application process. Instead, the government arranged an informal meeting with a director
of the Hokkaido Ainu Association who told Sheppard that the Ainu welcomed the World Heritage
nomination and denied the existence of sacred sites within the nominated area. A request for a
21 See IWGIA 2005, pp. 280-281.
278
formal meeting between Sheppard and all interested Ainu groups was refused by the Hokkaido
prefectural government and the Ministry of Environment, who did not want the effective participation
of a variety of Ainu groups. The Hokkaido Ainu Association complied with this decision. An informal
meeting did take place but only through standing and chatting during the welcome party.
Subsequently, the Ainu elder and activist for indigenous rights, Ogawa Ryukichi, challenged the
declaration of the director of Hokkaido Ainu Association that there were no Ainu sacred sites within
the heritage area, stressing the importance of Chashi as sacred sites and of preserving Ainu
cultural heritage in Shiretoko. His wife, Ogawa Sanae, a leader of the Ainu NPO Etekekanbano-kai, sent a letter to David Sheppard in September 2004 reporting on the matter of the Chashi
and asking about the involvement of the Ainu in the future management of the Shiretoko World
Heritage site. Abe Yupo not only sent a letter to David Sheppard but also visited him in November
2004 at his IUCN office in Switzerland, again emphasizing the need for Ainu involvement in
managing the site.
Since there are no Ainu living in the Shiretoko World Heritage Area, the Ainu groups and
activists demanding Ainu involvement in managing the Shiretoko World Heritage Area decided
to develop a business plan to provide an entry into the management of the World Heritage site.
Ainu ecotourism in the World Heritage Area was chosen as a measure to recover indigenous
rights, especially the right to natural resource use such as salmon fishing.22 SIPETRU (Shiretoko
Indigenous Eco-Tourism Research Union)23 was created for this purpose in April 2004 and began
eco-tours guided by Ainu people on July 1st of that year. At that time, SIPETRU sent a message to
IUCN emphasizing the importance of Ainu involvement in managing the Shiretoko World Heritage
Area through indigenous ecotourism.
IUCN did take note of these requests, highlighting in their technical evaluation of the site:
“It is important, as reinforced in the management plan (page 214 of the nomination
document) to ‘study the culture of the Ainu people and the traditional wisdom and skills
of the local residents in order to determine the methods to preserve, manage and realize
sustainable use of the natural environment.’ Accordingly it is considered important that
representatives of the Ainu people, such as through the Hokkaido Utari (Ainu) Association,
have the opportunity to be involved in the future management of the property, including
in relation to the development of appropriate ecotourism activities which celebrate the
traditional customs and uses of the nominated property.” 24
However, despite this recommendation by IUCN, the World Heritage Committee made no mention
of the Ainu in its decision to inscribe Shiretoko on the World Heritage List later in 2005.25
22 Ono 2006.
23 The abbreviation ‘SIPETRU’ means ‘main or big (si) river (pet) way (ru)’ in the Ainu language. It is an allusion to the
idea that the activity of SIPETRU will be a main way of recovering indigenous rights. Pet (river) is traditionally the most
important route for the transfer of natural resources for the Ainu, and regarded as divine by the Ainu.
24 IUCN 2005, p. 31.
279
Nevertheless, the IUCN evaluation was important, for it clearly indicated a process that would
allow the Ainu people to be involved in managing the Shiretoko World Heritage site even though the
Japanese government did not mention Ainu participation in their application. The IUCN document is also
remarkable from the viewpoint of indigenous rights since the recommendation is included in a section
entitled “Involvement of Indigenous Peoples”, which means that the IUCN document recognized the
Ainu as an indigenous people three years before the Japanese Parliament (Diet) officially recognized the
indigenous status of Ainu, in June 2008, just before the Hokkaido-Toyako G8 Summit.26
However, the IUCN evaluation uses wording that is conciliatory to the government: “It is
considered important that representatives of the Ainu people, such as through the Hokkaido Utari
(Ainu) Association, have the opportunity to be involved in the future management…” It leaves room
to defer implementation of the recommendation to ‘the future’, and mentions only the Hokkaido
Utari (Ainu) Association, not the other Ainu organizations that actually brought the Ainu issue to the
attention of IUCN. This reflects the actual balance of power between the Hokkaido Ainu Association
and other Ainu organizations in relation to the Japanese government, which only recognizes the
former group as representative of the Ainu people even though its membership makes up only a
fraction of Ainu society.
The management system for the World Heritage Area
The current management system for the Shiretoko World Heritage site does allow for some
involvement of Ainu individuals and organizations, although it is very limited. To understand where
their influence is possible, it is necessary to review the management system as a whole. The
current management plan for the Shiretoko World Heritage site dates from 2009 and consolidates
earlier management processes that were considered by the World Heritage Committee to be too
complex.27 The large number of laws applied to the lands and seas of the Shiretoko site (see
above) requires the involvement of a similarly large number of government agencies. Agencies
with legal responsibilities over part of the site include the Forestry Agency, the Ministry of the
Environment, the Ministry of Education, Culture, Sports, Science and Technology and the regional
fisheries agency of Hokkaido, all with specific laws that they are tasked to oversee.
26 “Resolution calling for the Recognition of the Ainu People as an Indigenous People of Japan”, adopted by both houses
of the National Diet of Japan on June 6, 2008. For details, see IWGIA 2009, p. 280. Note that UN human rights treaty
bodies had for years been calling on Japan to take steps to promote the rights of the Ainu as an indigenous people
(see e.g., Committee on the Elimination of Racial Discrimination, Concluding Observations: Japan, 27 April 2001,
Doc. CERD/C/304/Add.114, paras. 4, 5, 17). Shortly before the Diet resolution, the following recommendations had
been made to Japan during the UN Human Rights Council’s Universal Periodic Review: “Review, inter alia, the land
rights and other rights of the Ainu population and harmonize them with the United Nations Declaration on the Rights
of Indigenous Peoples. (Algeria); Urge Japan to seek ways to initiating a dialogue with its indigenous peoples so
that it can implement the United Nations Declaration on the Rights of Indigenous Peoples (Guatemala)” (UN Doc. A/
HRC/8/44, 30 May 2008, Recommendation 19).
27 This was the conclusion of a 2008 UNESCO/IUCN reactive monitoring mission, which issued a number of
recommendations as to how the management system could be simplified (see UNESCO 2008).
280
In order to facilitate this process, there is a ‘Shiretoko World Natural Heritage Regional
Liaison Committee’, the body responsible for coordinating the various bodies involved in the site
management and for building consensus among these agencies. In addition, a ‘Shiretoko World
Natural Heritage Scientific Council’ was established to provide independent and scientific advice
and inform government agencies in their management choices. In practice, the three main agencies
now actively managing the site are the Kushiro Nature Conservation Office (Hokkaido Regional
Environment Office, under the Ministry of the Environment), the Hokkaido Regional Forestry Office
(under the Forestry Agency) and the Hokkaido government, together with the local administrations
of Rausu Town and Shari Town. All their roles are undertaken within the framework agreed in the
Shiretoko Management Plan.
The agreed framework for management focuses on a division of the area into two broad
categories of protection, Areas A and B. The former refers to areas under strict environmental
conservation with no human intervention allowed, and comprises lands under a range of different
legal classifications (Wilderness Area, Special Protection Zone, etc.). This land is managed
predominantly by rangers under the employ of the Ministry of Environment and the Forestry
Agency. Area B refers to lands and resources in which human interaction is allowed, and includes
all areas in which tourism is allowed, in addition to all of the marine resources included in the park
in which sustainable and managed fisheries are allowed. There are a larger number of actors
involved in these ‘Area B’ parts of the site, as these can be used for various purposes.
To assist in the management of the Area B parts of the site, which can be used, there are
two further advisory bodies, the ‘Committee on the Proper Use of the Shiretoko World Natural
Heritage Site’ and the ‘Shiretoko Ecotourism Association’. The Proper Use Committee advises on
the formulation of rules for the use of the site, and is expected to incorporate scientific research
into its recommendations. The Shiretoko Ecotourism Association is tasked with “tak[ing] the
lead in spreading efforts based on the concept of ecotourism” in order to allow conservation of
the natural environment to take place alongside tourism, a critical industry in the area.28 It is in
the Shiretoko Ecotourism Committee that Ainu people have managed to find a small role in the
management of the Shiretoko area.
The core members of the Shiretoko Ecotourism Association are the tourism, tour-guide,
hotel and hot spring associations, and the Shiretoko Foundation, which is financially supported
by Shari and Rausu towns. Other members, such as the association of commerce and industry,
the fishermen’s association, as well as associations of transportation, agriculture and dairy
farming, are ranked as working members who can give advice to the committee. The Shari and
Rausu branches of the Hokkaido Ainu Association are also involved as working members.
The structure and name of the Shiretoko Ecotourism Association clearly illustrates the
nature tourism-oriented character of this committee. Its main interest is to promote tourism that
preserves the natural resources of Shiretoko and the outstanding natural values of the World
Heritage site. The Association was established in 2004 following a Ministry of Environment
initiative to promote ecotourism, with Shiretoko serving as a model. These circumstances led
28 Ministry of the Environment et al. 2009, p. 9.
281
the Shiretoko Ecotourism Association to stress nature tourism and neglect the cultural aspects
of Shiretoko, based on a perception of Shiretoko as a ‘cultureless wilderness area’.
SIPETRU sends a representative and a vice-representative to the Shiretoko Ecotourism
Association. The representative, Umezawa Toshio, is also a representative of the Shari branch
of the Ainu Association, while the vice-representative is a representative of the Rausu branch.
They therefore have a dual representative function in the Shiretoko Ecotourism Association.
These two representatives are, however, a tiny minority within the association.
There are no Ainu participants in any of the other advisory committees mentioned, the
Proper Use Committee, the Scientific Committee or the overall Regional Liaison Committee.
There is also no representation of the Hokkaido Ainu Association within any of these. This
means that Ainu involvement in Shiretoko is restricted purely to two representatives within one
of the advisory committees dealing only with ‘Area B’ of the site.
A significant problem for the Ainu people is that only a very small number of inhabitants
around the World Heritage Area, in Utoro and Rausu towns, publicly identify as Ainu. There
seem to be many other Ainu inhabitants but they choose to hide their identity to avoid suffering
discrimination. The Shari branch of the Ainu Association actually comprises only the Umezawa
family, while the Rausu branch has about thirty members. The Ainu members of SIPETRU come
mainly from Sapporo, although one member, Hayasaka Masayoshi, relocated to Utoro from
Sapporo. Ainu eco-tours in Shiretoko are operated by Hayasaka, who works as a guide, and the
Umezawa family, who run an inn at Utoro. They represent only a small portion of all the eco-tours
conducted in the Shiretoko World Heritage Area.
Ecotourism activities in the Shiretoko World Heritage Area
As is clear from the description of the Shiretoko management arrangements, one area in which
the management system has allowed Ainu involvement is the area of ecotourism on the site.
This emerged from the persistent efforts of Ainu and non-Ainu supporters in Hokkaido to develop
Ainu ecotourism on the peninsula.
When SIPETRU began its Ainu eco-tours in 2004, it chose Chashi-kot Etou as a tour site
(Map 1) because it was regarded as a sacred site by some Ainu and had not been visited by
tourists even though it was quite close to Utoro, one of the entry points to the World Heritage
Area. SIPETRU modeled this first attempt to introduce Ainu ecotourism to Japan on studies
of Maori ecotourism in Aotearoa (New Zealand), developing three- and five-hour eco-tour
programs. Each tour begins with a traditional Ainu salutation to the gods (On-kami), and includes
a visit to the Chashi-kot, an explanation of plant resources traditionally used by the Ainu, along
with a taste of traditional Ainu tea and a performance of traditional musical instruments such as
the mukkuri and tonkori. Some tours also include a traditional Kamuy-nomi ceremony.
The Ainu eco-tours created by SIPETRU are designed to facilitate a communicative,
participation-oriented experience in which non-Ainu participants have opportunities to play
traditional instruments, taste traditional tea and pray to the gods together with the Ainu. Tourists
282
also have the opportunity to work on a traditional Ainu boat (Itaomachip) by helping to hollow out
a tree trunk with a hammer and chisel. They can then create a pendant from one of the shavings
with the help of an Ainu woodcutting artist. Some Ainu eco-tour participants stay at the inn run by
the Umezawa family in Utoro where they can enjoy Ainu-style cooking and embroidery, especially
on rainy days not suitable for the outside program.
SIPETRU sees the development of ecotourism as one part of a recovery of Ainu rights more
generally and defines its five core goals as ecotourism, research, employment for Ainu youth,
sharing the Ainu spirit and indigenous rights activism. These five points are interconnected and
together contribute to the recovery of indigenous rights through ecotourism.
SIPETRU research is already bearing fruit. Studies conducted together with the Hokkaido
University Centre for Ainu and Indigenous Studies (HUCAIS) have revealed a dwelling pit at Chashikot Etou originally created by the Okhotsk people. The Okhotsk were seafarers who migrated to
the Okhotsk and Japan Sea coasts of Hokkaido from coastal regions of Siberia, Sakhalin and
Kamchatka between the third and thirteenth centuries.29 The dwelling pit at Chashi-kot Etou was
formed around the twelfth or thirteenth century in the final stage of the Okhotsk culture. Also known
as the Tobinitai culture, it had features of both Okhotsk and Satsumon-Ainu cultures.30
Sharing the Ainu spirit with participants is an important task for Ainu ecotourism. Spiritual
aspects of Ainu culture are shared with the participants through ceremonies as well as on various
occasions during the eco-tours. The tours emphasize respect for the forest, rivers and ocean, as
well as a general sense of living in harmony with nature conveyed through music, chanting and
story-telling. They further include a discussion of the present situation of the Ainu in Japanese
society. Ainu eco-tours in Shiretoko also provide an important opportunity for Ainu youth to study
traditional knowledge of natural resource use as well as Ainu ceremonies and spiritualism. Because
Ainu youth have few chances to study these traditions, participation in an eco-tour guided by an
Ainu elder can be a valuable educational experience.31
The employment of Ainu youth in ecotourism is one of the most important goals of SIPETRU’s
activities. There is still a big gap between Ainu and non-Ainu youth in levels of employment and
education due to the economic realities of Ainu society. Job creation is urgently needed for Ainu
youth, and Ainu ecotourism has strong potential in this area. The fee for a three-hour Ainu ecotour in Shiretoko is set at 5,000 yen per person, with a maximum of ten participants to ensure an
intimate experience and reduce the ecological impact of the tour. If there are enough tourists, Ainu
youth can potentially make a living from the ecotourism business.
Since the establishment of SIPETRU, one Ainu, Hayasaka Masayoshi, has been employed
by SINRA, an ecotourism company in Shiretoko that supports the activities of SIPETRU. He now
works partly as an independent Ainu eco-tour guide. However, although he led more than sixty Ainu
eco-tours in 2010 and eighty in 2011, he still cannot make a living solely from conducting tours.
When there is no demand for Ainu eco-tours, he continues to work as a nature guide for SINRA,
29 Amano 2008.
30 Onishi 2009; Ono 2010.
31 Ono et al. 2007.
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Ainu crane dance. “Traditional Ainu Dance” was inscribed on UNESCO’s Representative List of the
Intangible Cultural Heritage of Humanity in 2009. Believing that deities can be found in their surroundings,
the Ainu frequently use dance to worship and give thanks to nature. Photo: Cactusbeetroot (CC BY-NC 2.0)
and sell his woodcarvings at a small shop that benefits from his activity as a tour guide. Hayasaka’s
wider family is also involved in Ainu tourism. His mother opened a small souvenir shop in one of
the larger hotels that sells Ainu art and craft items, such as Hayasaka’s woodcarvings, his brother’s
paintings and his sister’s embroidery. This approach to ecotourism as a family business is common
in Maori eco-tours in Aotearoa. Members of SIPETRU were also involved in the establishment of
the non-profit organization ‘World Indigenous Peoples Network, Ainu (Win-Ainu)’ which was legally
admitted in October 2012. This organization will facilitate and support future ecotourism activities
in Shiretoko. The successes achieved to date in developing Ainu ecotourism in Shiretoko are due
in part to the value of the Shiretoko World Heritage designation. They are also due to the Ainu
movement demanding involvement in the management of the site.
Conclusion
As can be seen from this paper, the involvement of the Ainu in the nomination and inscription process
for Shiretoko was nearly non-existent, despite continual efforts by Ainu to reach out to the Japanese
government and to IUCN to highlight their desire to be engaged in the process. The management
system in place now similarly does not provide adequate space for the Ainu to have any form of
284
political or representative presence. The Shiretoko Ecotourism Association has proved the only
avenue through which the Ainu have been able to get themselves involved in the management of
their ancestral home in any role more significant than as a subject of study and research.
Unfortunately, the efforts of the Ainu to recover their indigenous rights, including the efforts
of Ainu organizations to be involved in managing the Shiretoko World Heritage Area, are being
stymied by the recent tendency of the Hokkaido Ainu Association to cooperate ever more closely
with the Japanese government (largely to access more funding). A drastic policy change is urgently
needed on the part of the Hokkaido Ainu Association if the Ainu are to recover their indigenous
rights, both in Shiretoko and in Hokkaido generally.
Given the difficult situation, Ainu ecotourism is assuming an increasingly important role. Although
the Hokkaido Ainu Association has not contributed to the development of Ainu ecotourism, since
2005 Ainu eco-tours have been launched in various parts of Hokkaido, including Akan, Sapporo,
Noboribetsu and Shiraoi, creating jobs for Ainu youth, albeit on a limited scale for the time being.32
In Shiretoko, SIPETRU’s ecotourism activities have had a considerable effect, although increasing
local Ainu membership remains an important challenge. Rights recovery through ecotourism has a
long way to go but participation in managing the Shiretoko World Heritage Area will be enhanced
by continued efforts to develop Ainu ecotourism in the area.
To support these (limited) signs of progress at the national level, there is also a need for the
World Heritage Committee and IUCN to remain appraised of, and monitor, the situation of the Ainu
at the Shiretoko site. IUCN, as the Committee’s key advisory body for natural heritage sites, made
early references to the Ainu in its technical evaluation of the original nomination of Shiretoko in
2005. In this evaluation, IUCN specifically recommended that management of the site be adjusted
to ensure that the Ainu had opportunities to participate:
“… it is considered important that representatives of the Ainu people… have the opportunity
to be involved in the future management of the property…” 33
However the Government of Japan did not act on this 2005 recommendation, as demonstrated in this
paper. Despite this, IUCN and UNESCO failed to return to the issue in the report of their monitoring
mission to Shiretoko and subsequent State of Conservation Reports, wherein they issued a series of
recommendations related to the management of the site without ever mentioning the Ainu.34 Indeed
in a document annexed to the report of the 2008 monitoring mission, the Ainu are again relegated
to symbolic language, with local government, including the Governor of Hokkaido, declaring that “we
will maintain the wisdom and skills that the region’s ancestors, the Ainu, have passed on through the
generations as well as conserve the valuable history and remember what the land has provided us”.35
32
33
34
35
Akibe 2011; Ono 2010.
IUCN 2005, p. 31.
IUCN and UNESCO 2008; UNESCO 2008; UNESCO 2012, p. 33 ff.
See IUCN and UNESCO 2008, Annex C: ‘Shiretoko World Treasure Declaration signed by the Governor of Hokkaido
and the Mayors of Shari and Rausu, in October 2005’.
285
Apart from this, the Ainu do not merit a single further mention. IUCN and the World Heritage
Committee should keep the pressure on the Government of Japan to ensure that the original
2005 recommendation is followed, and that the Ainu are provided with the opportunity of being
meaningfully involved in the management of Shiretoko.
This would also be in accordance with the ‘Kyoto Vision’ adopted on 8 November 2012 at the
Closing Event of the Celebrations of the World Heritage Convention’s 40th Anniversary in Kyoto, Japan,
which stresses the important role of indigenous peoples in the implementation of the World Heritage
Convention and appeals to the international community to ensure effective involvement of indigenous
peoples in conservation “from the preparatory phase of the World Heritage nomination process, so
that heritage conservation contributes to the sustainable development of the whole society”.36

References
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implication for the origin of Native American. American Journal of Physical Anthropology, Vol. 138, pp. 255-265.
Akibe, H. 2011. Akan Ainu no Eco-tourism. Maukopirka, No. 3/4, pp. 87-89.
Amano, T. 2009. Kodai no Kaiyoumin Okhotsk-jin no Sekai - Ainu Bunka wo sakanoboru. Tokyo, Yuzankaku.
Committee on the Elimination of Racial Discrimination. 2001. Concluding Observations of the Committee on the
Elimination of Racial Discrimination: Japan, Doc. CERD/C/304/Add.114.
Government of Japan. 2004. Shiretoko World Heritage List Nomination 2004. Tokyo, Ministry of Environment.
Emori, S. 2007. Ainu Minzoku no Rekishi. Tokyo, Sofukan.
Indigenous Peoples Summit in Ainu Mosir Steering Committee. 2008. Indigenous Peoples Summit in Ainu Mosir 2008.
IUCN. 2005. World Heritage Nomination-IUCN Technical Evaluation: Shiretoko (Japan). IUCN Evaluation of Nominations of
Natural and Mixed Properties to the World Heritage List, UNESCO Doc. WHC-05/29.COM/INF.8B.2.ADD, pp. 25-34.
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February 2008. Paris, UNESCO.
IWGIA. 2005. The Indigenous World 2005. Copenhagen, IWGIA.
IWGIA. 2009. The Indigenous World 2009. Copenhagen, IWGIA.
Kato, H. 2008. World Heritage and Indigenous archaeology in Hokkaido Island (Paper prepared for the 6th World
Archaeological Congress, Dublin, Ireland). Sapporo, Center for Ainu and Indigenous Studies, Hokkaido University.
Kato, H. 2009. Whose Archaeology?: Decolonizing Archaeological Perspective in Hokkaido Island. Journal of the Graduate
School of Letters, Hokkaido University, Vol. 4 (March 2009), pp. 47-55.
Kayano, S. and Akibe, H. 2009. [Ainu no Seisaku no arikata ni kansuru Yushikisha Kondankai] Hokokusho ni tsuite.
Maukopirka, No.1/2, p. 30.
Ministry of Environment, Forestry Agency, Agency for Cultural Affairs and Hokkaido Prefectural Government.
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Ministry of the Environment, Forestry Agency, Agency for Cultural Affairs and Hokkaido Government. 2009.
Management Plan for the Shiretoko World Natural Heritage Site. December 2009.
Onishi, H. 2009. Tobinitai Bunka karano Ainu Bunka-shi. Tokyo, Doseisha.
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Spirit of a Northern People, Washington, University of Washington Press, pp. 32-38.
Ono, Y. 1999b. Ainu- go Chimei no Heiki wo kangaeru. Kotoba to Shakai, No.1, pp. 78-86.
36 Reproduced in UNESCO 2013, p. 11.
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Ono, Y. 2006. The participation of the Ainu people in the management of Shiretoko World Natural Heritage and the role of
researchers. Kankyo Shakaigaku Kenkyu, Vol. 12, pp. 41-56 (Japanese with English abstract).
Ono, Y. 2010. Ainu Eco-tourism ni yoru Kenri Kaihuku. Maukopirka, No.1/2, pp. 23-24.
Ono, Y., Umezawa, M., Ponpe, I., Yuuki, K., Nishihara, Sh. and Fujisaki, T. 2007. Recovering Ainu governance in the
Shiretoko World Natural Heritage area in Japan through education and training for the Development of Indigenous
Ecotourism (Paper for the Proceedings of the 7th World Indigenous Peoples’ Conference on Education, Hamilton,
Aotearoa, 2005).
Sato, T. et al. 2007. Origins and genetic features of the Okhotsk people, revealed by ancient mitochondrial DNA analysis.
Journal of Human Genetics, Vol. 52, pp. 618-627.
SIPETRU. 2006. Shiretoko Indigenous Peoples’ Eco-Tourism Research Union (leaflet).
Udagawa, H. 2003. Chashi. S. Erori (ed.), Ainu no Rekishi to Bunka. Sendai-shi, Sodosha, pp. 94-103.
UNESCO. 2005. Decisions of the 29th Session of the World Heritage Committee (Durban, 2005). Doc. WHC-05/29.COM/22.
UNESCO. 2008. State of conservation of World Heritage properties inscribed on the World Heritage List: Shiretoko (Japan)
(N 1193). Doc. WHC-08/32.COM/7B.Corr.
UNESCO. 2012. State of conservation of World Heritage properties inscribed on the World Heritage List. Doc. WHC-12/36.
COM/7B.
UNESCO. 2013. Looking Forward: Report on the 40th Anniversary of the World Heritage Convention – A Worldwide
Celebration. Paris, UNESCO World Heritage Centre.
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HRC/8/44, 30 May 2008.
Walker, B. L. 2001. The Conquest of Ainu Lands. Ecology and Culture in Japanese Expansion, 1590-1800. Berkeley,
University of California Press.
287
289
Pukulpa pitjama Ananguku ngurakutu –
Welcome to Anangu land:
World Heritage at Uluru-Kata Tjuta National Park
Michael Adams1
Introduction
Ananguku Tjukurpa kunpu pulka alatjitu ngaranyi. Inma pulka ngaranyi munu Tjukurpa pulka
ngaranyi ka palula tjana-languru kulini munu uti nganana kunpu mulapa kanyinma. Miil-miilpa
ngaranyi munu Ananguku Tjukurpa nyanga pulka mulapa. Tjukurpa panya tjamulu, kamilu,
mamalu, ngunytjulu nganananya ungu, kurunpangka munu katangka kanyintjaku.
“There is strong and powerful Aboriginal Law in this Place. There are important songs and
stories that we hear from our elders, and we must protect and support this important Law.
There are sacred things here, and this sacred Law is very important. It was given to us by
our grandfathers and grandmothers, our fathers and mothers, to hold onto in our heads
and in our hearts.”
Tony Tjamiwa2
1
2
Written in consultation with an Anangu Working Group of the Uluru-Kata Tjuta National Park Board of Management,
the Central Land Council Joint Management Officer and Parks Australia staff.
All italicised quotes in section introductions are from: Director of National Parks 2010a.
Left: A view of the Kata Tjuta domes. Photo: Pierre Lesage (CC BY-NC-ND 3.0)
290
L
ocated in the centre of Australia, the Uluru-Kata Tjuta National Park and World Heritage site
is centred on the huge sandstone monolith Uluru, arguably the best known natural symbol
of Australia and a major focus of the tourism industry. The Pitjantjatjara and Yankunytjatjaraspeaking Indigenous people of this Western Desert region of the Northern Territory call themselves
Anangu. The landscape of the Park includes ecological zones typical of the Central Australian
arid ecosystems, as well as the monoliths of Uluru and Kata Tjuta themselves, which have been
recognised in Anangu culture and practices for millennia.
In Anangu terms, this landscape was created at the beginning of time by ancestral beings who
are the direct ancestors of contemporary Anangu. For Anangu, all relationships with each other and
with their homeland are governed by Tjukurpa, the law. In Western terms, Anangu have lived in the
region that now contains Uluru-Kata Tjuta National Park for thousands of years. The landscape
bears the marks of their presence in an ecology determined by culturally-specific fire regimes and
hundreds of archaeological and art sites. As indicated in the quote above, Tjukurpa determines the
responsibilities that present-day Anangu have for continuing to care for the country created by their
ancestors. These relationships and responsibilities intersect with modern conservation regimes
imposed on the region since 1958.
Since 1985, Uluru-Kata Tjuta National Park has been jointly managed by the Anangu people
and Parks Australia, an Australian government conservation bureaucracy.
World Heritage values
Nintiringkula kamila tjamula tjanalanguru. Wirurala nintiringu munula watarkurinytja wiya.
Nintiringkula tjilpi munu pampa nguraritja tjutanguru, munula rawangku tjukurpa kututungka
munu katangka kanyilku. Ngura nyangakula ninti – nganana ninti.
“We learnt from our grandmothers and grandfathers and their generation. We learnt
well and we have not forgotten. We’ve learnt from the old people of this place, and we’ll
always keep the Tjukurpa in our hearts and minds. We know this place – we are ninti,
knowledgeable.”
Barbara Tjikatu
Tjurkulytju kulintjaku kuranyu nguru pinangku munu utira ngukunytja tjura titutjaraku witira
kanyintjikitjaku kututungku kulira.
“Clear listening, which starts with the ears, then moves to the mind, and ultimately settles
in the heart as knowledge.”
Tony Tjamiwa
PUKULPA PITJAMA ANANGUKU NGURAKUTU – WELCOME TO ANANGU LAND: WORLD HERITAGE AT ULURU-KATA TJUTA NATIONAL PARK
291
Uluru-Kata Tjuta National Park has been inscribed twice on the World Heritage List. It was first
nominated in 1986 by the Australian government for inclusion on the World Heritage List as both
a ‘cultural’ and a ‘natural’ site.3 However, the nomination was processed by UNESCO as a natural
site rather than a mixed site, and only considered under the natural heritage criteria.4 In 1987, two
years after the Handback (see below) and initiation of joint management arrangements, the Park
was listed as a natural World Heritage site only, although IUCN’s evaluation of the nomination
recognised (within the terms of the then natural heritage criterion iii) that there was an “exceptional
combination of natural and cultural elements” and that the “overlay of the aboriginal occupation
adds a fascinating cultural aspect to the site”.5
The natural values for which Uluru-Kata Tjuta National Park is inscribed on the World Heritage
List include, among other values:
• the remarkable and unique natural geological and landform features formed by the huge
monoliths of Uluru and Kata Tjuta set in a contrasting sand plain environment;
• the immense size and structural integrity of Uluru, which is emphasised by its sheer, steep
sides rising abruptly from the surrounding plain;
• the exceptional natural beauty of the view fields in which the contrasts and the scenic
grandeur of the monoliths create a landscape of outstanding beauty of symbolic importance
to both Anangu and European cultures;
• tectonic, geochemical and geomorphic processes associated with the inselbergs of Uluru
and Kata Tjuta, which result in the different composition of these two relatively close
outcroppings, their differing extent of block tilting and types of erosion, the spalling of the
arkose sediments of Uluru and massive ‘off loading’ of conglomerate at Kata Tjuta.6
The listing of Uluru-Kata Tjuta National Park as only a ‘natural’ World Heritage site, and the lack
of international recognition of the ongoing relationship between Anangu and their country, was
met with concern by Anangu Traditional Owners, the Park’s Board of Management, as well as
heritage professionals. This criticism contributed to the decision by the World Heritage Committee
to develop the World Heritage Convention’s Operational Guidelines and revise the cultural heritage
criteria in order to accommodate the inclusion of ‘cultural landscapes’ on the World Heritage
List.7 In 1992, the Committee adopted revisions to the cultural heritage criteria along with new
3
4
5
6
7
Commonwealth of Australia 1986.
The reasons for this are somewhat obscure. While IUCN’s evaluation of the nomination noted that “Cultural values of
the area are being reviewed by ICOMOS” (IUCN 1987, p. 8), such a review did not occur. All working documents from
the 11th session of the World Heritage Committee (1987), including the Bureau session, treat the park as a natural
site. See http://whc.unesco.org/en/sessions/11COM/documents; and http://whc.unesco.org/en/sessions/11BUR/
documents.
IUCN 1987, p. 12. Natural heritage criterion (iii) at the time inter alia referred to sites containing “superlative natural
phenomena, formations or features, for instance… exceptional combinations of natural and cultural elements”. The
reference to “cultural elements” was removed from the text of natural criterion (iii) in December 1992 (see Layton and
Titchen 1995, p. 176).
Director of National Parks 2010a, pp. 151-152.
Layton and Titchen 1995; McBryde 1990; Harrison 2013, p. 122.
292
interpretive paragraphs recognising three distinct categories of outstanding cultural landscape.8
These changes to the cultural heritage criteria, through which the significance of Uluru-Kata Tjuta
to the Anangu people could be better acknowledged, revived the debate in Australia concerning
the international recognition of the cultural values of the Park.9
In 1994, Barbara Tjikatu and Tony Tjamiwa, the Anangu Traditional Owners quoted above,
were part of a group who travelled to Phuket, Thailand, to present a renomination by the Australian
government to the World Heritage Committee for Uluru-Kata Tjuta National Park to be listed as a
‘cultural landscape’ in addition to the natural heritage listing.10 The proposal was accepted and the
Park listed as a cultural landscape under cultural criteria (v) and (vi) in the same year.11 Under
cultural criterion (v) recognised values include:
• the continuing cultural landscape of the Anangu Tjukurpa that constitutes the landscape of
Uluru-Kata Tjuta National Park and which:
– is an outstanding example of a traditional human type of settlement and land-use, namely
hunting and gathering, that dominated the entire Australian continent up to modern times;
– shows the interactions between humans and their environment;
– is in large part the outcome of millennia of management using traditional Anangu
methods governed by the Tjukurpa;
– is one of relatively few places in Australia where landscapes are actively managed by
Aboriginal communities on a substantial scale using traditional practices and knowledge
that include:
• particular types of social organisation, ceremonies and rituals, which form an
adaptation to the fragile and unpredictable ecosystems of the arid landscape;
• detailed systems of ecological knowledge that closely parallel, yet differ from, the
Western scientific classification;
• management techniques to conserve biodiversity such as the use of fire and the
creation and maintenance of water sources such as wells and rockholes.12
Under cultural criterion (vi) recognised values include:
• the continuing cultural landscape which is imbued with the values of creative powers of
cultural history through the Tjukurpa and the phenomenon of sacred sites;
• the associated powerful religious, artistic and cultural qualities of this cultural landscape;
8
9
See Layton and Titchen 1995, p. 176.
Ibid. Layton and Titchen also note that due to the removal of the reference to ‘exceptional combinations of natural
and cultural elements’ from natural criterion (iii), which also occurred in 1992 and which they strongly criticise, the
“continuing relationship between Anangu and their land at Uluru [was] even less well recognized than at the time of
Uluru’s original inclusion on the World Heritage List”.
10 Commonwealth of Australia 1994.
11 The park was inscribed under the categories of ‘organically evolved landscape; continuing cultural landscape’ and
‘associative cultural landscape’. For details, see Calma and Liddle 2003.
12 Director of National Parks 2010a, p. 150.
293
Map 1: Uluru-Kata Tjuta National Park. Adapted from a map provided by the Department of the Environment,
Government of Australia
• the network of ancestral tracks established during the Tjukurpa in which Uluru and Kata
Tjuta are meeting points.13
The World Heritage recognition of the Park’s cultural values clearly acknowledges both ancient
Anangu occupation and interaction with the landscapes and ecosystems, and the continuity of this
into the present, including the necessity of maintaining Anangu practices and cultural structures. It
also acknowledges the significance and primacy of Tjukurpa. This recognition establishes a very
strong basis for requiring the managing authority to integrate Anangu practices and Tjukurpa into
the management of the World Heritage site.
The listing of the natural values, in contrast, recognises Western scientific explanations for the
geological origins of the site, as well as acknowledging that the monoliths are of “symbolic importance
to both Anangu and European cultures”.14 This symbolic importance to non-Anangu people is central
to the tourism interest in the site, and has clear implications for the activity known as ‘the climb’
(discussed later). The 1986 nomination stated that “Australian tourists perhaps feel more Australian
after visiting the park”,15 an observation borne out by subsequent research discussed later.
15 Commonwealth of Australia 1986, p. 4.
294
World Heritage issues in Australia are managed through several policy levels. Day-to-day
management is generally the responsibility of one of the state or federal government agencies delivering
protected area management. In the case of Uluru-Kata Tjuta National Park, this is Parks Australia.
Coordination at a national level is achieved through the Australian World Heritage Advisory Council
(made up of representatives of all Australian World Heritage sites), which makes recommendations to
the Environment Protection and Heritage Advisory Council, a council of elected government ministers.
On Indigenous issues, the Australian World Heritage Advisory Council is advised by a group comprising
Indigenous representatives from relevant World Heritage Areas, the Australian World Heritage
Indigenous Network (AWHIN). While the Council fully supports AHWIN, in recent years no funding has
been supplied by government to support the operations of AWHIN, limiting its ability to provide effective
input. Periodic reporting to UNESCO is done by the Commonwealth Department of the Environment, as
part of its responsibilities under the Environment Protection and Biodiversity Conservation Act 1999.
Historical background
Park-angka unngu munu park-angka urilta Tjukurpa palunyatu ngaranyi kutjupa wiya.
Ngura miil-miilpa tjuta park –angka ngaranyi – uwankara kutju ngaranyi, Tjukurpangka.
“It is one Tjukurpa inside the park and outside the park, not different. There are many
sacred places in the park that are part of the whole cultural landscape–one line. Everything
is one Tjukurpa.”
Tony Tjamiwa
Pitjantjatjara and Yankunytjatjara-speaking people first encountered non-Aboriginal people when the
explorers Ernest Giles and William Gosse crossed the region in the 1870s, following the initial British
arrival in Australia in 1788. Attempts from the 1920s to isolate the region’s Aboriginal people from
contact with European society included the creation of the Petermann Aboriginal Reserve, which
included Uluru, and was intended as a ‘refuge’ so “the Aboriginal may here continue his normal
existence until the time is ripe for his further development” [sic].16 The creation of government
reserves, as well as religious-based missions, was in part a response to the violence of the colonial
frontier’s pastoralists and police towards Aboriginal people. The development of pastoralism also had
an impact on water sources and animals traditionally hunted for food, with significant environmental
changes due to the introduction of cattle. These pressures contributed to forcing many local people
away from their traditional country, sometimes onto nearby pastoral stations, sometimes to the fringes
of towns like Alice Springs, and sometimes to the reserves and missions. Since the 1940s, the focus
from government has been conservation and tourism, in addition to Aboriginal welfare issues. From
1936, tourists started to come to Uluru and, as interest increased, ad hoc accommodation facilities
were built at the base of Uluru and Aboriginal people were actively discouraged from visiting or
16 Layton 1986, p. 73.
295
staying. In 1958, the area including Uluru and Kata Tjuta was excised from the Peterman Aboriginal
Reserve, and gazetted as Ayers Rock-Mount Olga National Park, using the European names given
to Uluru and Kata Tjuta by Giles and Gosse. Once excised from the Aboriginal Reserve, Aboriginal
people had no right to enter the area. Instead, tourists “freely entered sites to which Aboriginal women
and children had never been allowed access” in accordance with Aboriginal law.17
Following the massive alienation of land from Indigenous peoples in Australia which took
place during the colonial period, Aboriginal leaders were active in campaigning to regain rights to
land from at least the 1850s on. During the late 1960s and early 1970s, those struggles intersected
with changing political conditions, and led eventually to the passing of the Aboriginal Land Rights
(Northern Territory) Act by the federal (Commonwealth) government in 1976. The legislation was the
first attempt by an Australian government to legally recognise the Aboriginal system of land ownership
and put into law the concept of inalienable freehold title: successfully claimed lands are communally
held, and cannot be sold or traded. The only land able to be claimed was unalienated Crown land
or land already wholly owned by Aboriginal people. A successful land claim under this legislation
required the Aboriginal landowners to prove their traditional relationship to the land under claim.
The Northern Territory government of the time vigorously opposed the Land Rights Act and formally
opposed every land claim, leading to very extensive delays. However, the Act eventually led to the
return of very significant amounts of land to Aboriginal peoples across the Northern Territory.
In 1978, a claim was lodged under this Act for an area that included Uluru-Kata Tjuta National
Park. While the Aboriginal Land Commissioner found that there were verifiable traditional owners
for the Park, the Park itself could not be claimed due to the constraints of the legislation (as a
national park, it was not ‘unalienated Crown land’). Other land surrounding the Park was granted
as Aboriginal land held by the Katiti and Petermann Land Trusts. Anangu successfully lobbied the
government to amend the Act to allow the claim over the Park and, on 26th October 1985, at a large
ceremonial ‘Handback’ event, title to Uluru-Kata Tjuta National Park was returned to the traditional
owners. However, the Handback took place under imposed conditions, including the simultaneous
leasing of the land back to the Commonwealth Government as a national park managed by the
Commonwealth agency, Parks Australia, and with the continuation of tourist climbs on the rock.
Soon after the Handback, the first Board of Management was declared, with Anangu man Yami
Lester, a seasoned land rights campaigner, as the inaugural Chair.
Joint management
Ngaranyi manta park-angka urilta kulu-kulu manage-amilantjaku. Atunymankunytjaku
ngura park-angka urilta ngarantja tjuta.
“The land both within and outside the park needs to be managed. There are many significant
places to protect outside the park.”
Barbara Tjikatu
17 Layton 1986, p. 76.
296
With the 1985 Handback, Uluru-Kata Tjuta National Park became the second national park in
Australia to be jointly managed by Aboriginal owners and a government conservation agency.18
While the Anangu Traditional Owners hold inalienable freehold title (via a Land Trust), the land is
leased back to the Australian government to continue to be managed as a national park. The staff
of the Park are employed as officers of the Department of the Environment, under Australian Public
Service conditions. The Park is entirely surrounded by the extensive lands of the Petermann and
Katiti Aboriginal Land Trusts, with the exception of the small areas of Yulara township and airport. Variations of this joint management model have been adopted in all conservation jurisdictions
in Australia as a way of resolving competing claims and interests from Indigenous peoples, on
the one hand, and conservation interests on the other. Over the last 30 years, there has been a
very significant increase in such arrangements. Coupled with the creation of Indigenous Protected
Areas (which are conservation agreements over existing Aboriginal freehold, without a leaseback
arrangement, discussed later), the formally recognised Aboriginal conservation estate comprises
around 50 Aboriginal-owned reserves and more than 150 jointly-managed reserves, currently more
than 30% of the protected area estate of Australia.19
The diversity of approaches to co-management in Australia is in part a response to the
existence of the Commonwealth (federal) and six state governments, as well as two territory
governments, all with responsibilities for creating and managing protected areas. While a number
of generally applicable legislative models are emerging, in the past special legislation has been
used to put specific co-management arrangements in place. For instance, the Northern Territory
government enacted the Cobourg Peninsula Land and Sanctuary Act 1981 to create and provide
for co-management of Gurig National Park (now Garig Gunak Barlu National Park). This example
is distinctive because although negotiations were conducted under the cloud of an unresolved
land rights claim, ownership was granted to a land trust to hold on behalf of the traditional owners
without any requirement for a leaseback to the protected areas agency.20
At Uluru-Kata Tjuta National Park, a majority of the Board of Management must be Indigenous
persons nominated by the Traditional Owners, so Anangu are nominated to eight of the twelve
positions on the Board. They typically hold these positions for around five years. The Board is
responsible for making decisions relating to Park management that are consistent with the Plan of
Management. In conjunction with the Director of National Parks, it is also the Board’s responsibility to
prepare Park management plans; monitor Park management; and advise the Minister on all aspects
of the future development of the Park. Board meetings are held several times each year, and are
conducted simultaneously in English and Pitjantjatjara and/or Yankunytjatjara. Plans of Management
have been prepared five times, with the current plan covering the period 2010-2020.
The Lease Agreement, first signed in 1985 and continuing for a period of 99 years, sets out the
obligations of Parks Australia. These include a specified rent payment to the Traditional Owners as
18 While Stage 1 of Kakadu National Park was declared in 1979, effective joint management commenced around 1990
(see Lawrence 2000). Gurig National Park (now Garig Gunak Barlu National Park) was established as a jointly
managed park under its own legislation in 1981. Both of these are also in the Northern Territory.
19 Smyth 2001; http://www.environment.gov.au/parks/nrs/about/ownership.html#table.
20 Smyth 2001; Foster 1997.
297
The traditional owners Mr. Peter Bulla, Mr. Peter Kanari, Mr. Nipper Winmarti and his wife, Barbara
Tjirkadu, with Australian Government representatives Sir Ninian Stephen, Mr. Holding and Mr. Cohen (left to
right) during the 1985 Handback ceremony. Photo: Department of Aboriginal Affairs, Government of Australia
well as 25% of receipts in respect of entry fees and other charges, fees or fines received arising out
of the operation of the legislation. The Lease also commits Parks Australia to a suite of tasks, including
the maintenance of Anangu tradition through protection of sacred sites and other areas of significance;
maximising Anangu involvement in Park administration and management, and providing necessary
training; maximising Anangu employment in the Park by accommodating Anangu needs and cultural
obligations with flexible working conditions; and using Anangu traditional skills in Park management.
The Lease includes provision for a five-yearly review.
It could reasonably be argued that Australia has been a global leader in the concept and
implementation of joint management of protected areas with Indigenous peoples. The many versions
of joint management operating in Australia in part reflect the diversity of Aboriginal peoples, local
cultures and landscapes, as well as the diversity of policy situations, and while there are challenges
and disagreements in probably every case, there are also generally continuing attempts to work
towards better outcomes. This is sometimes achieved by Indigenous litigation and political advocacy
challenging entrenched government structures, and sometimes by committed individuals, both
Aboriginal and non-Aboriginal, working towards solutions. For non-Indigenous individuals working
within the various parks agencies, it can be a frustrating paradox to be responsible for implementing
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Figure 1: Diagram of the joint management structure.
Source: Director of National Parks
public service regulations which are clearly at odds with the practice of Indigenous culture. For
Indigenous owners, it can be disheartening and frustrating to hear a repeated set of commitments to
an ideal while watching the failure of those ideals in practice. While some of the difficulties are due to
individuals, much is a product of ineffective and contradictory legislation and policy.
As well as jointly-managed reserves, there are also now more than 50 Indigenous Protected Areas
declared across Australia, covering more than 36 million hectares, and with an ambitious program for
expansion. Indigenous Protected Areas differ in general from joint-management arrangements in that
they are voluntarily requested by Indigenous owners over land owned by them.21 They are recognised as
part of Australia’s national system of protected areas, and Indigenous owners are able to access funds to
assist with management and planning. Within Indigenous Protected Areas, Indigenous owners maintain
autonomy over their land and cultural practices, choosing whether or not to collaborate with non-Indigenous
institutions. Recent developments include multi-tenure Indigenous Protected Areas,22 providing a further
vehicle for collaboration between government protected areas and Indigenous landowners.
Anangu Traditional Owners have been working with the Central Land Council to develop an
Indigenous Protected Area on the Katiti and Petermann Aboriginal freehold land that surrounds Uluru21 Bauman and Smyth 2007.
22 E.g., Mandingalbay Yidinji Indigenous Protected Area: http://www.environment.gov.au/indigenous/ipa/declared/
mandingalbay.html.
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Kata Tjuta National Park. This has the potential for very positive outcomes, with clear Anangu control
and the opportunity to coordinate conservation and cultural activities across a very large area.
The role of Tjukurpa and Anangu traditional knowledge in the management of
the Park
Manta atunymananyi, kuka tjuta atunymananyi munu mai tjuta atunymananyi. Kaltja
atunymananyi munu Tjukurpa kulu-kulu. Park atunymananyi. Kumuniti atunymananyi.
“Looking after land. Looking after animals, and bush tucker. Looking after culture and
Tjukurpa. Looking after park. Looking after community.”
Judy Trigger
At Uluru-Kata Tjuta National Park, the joint management framework and philosophy are central
to the successful protection of World Heritage values. Prioritising Tjukurpa and Anangu traditional
knowledge is the only way that some World Heritage values can be maintained, for example:
“…landscapes are actively managed by Aboriginal communities on a substantial scale using
traditional practices and knowledge that include: particular types of social organisation,
ceremonies and rituals which form an adaptation to the fragile and unpredictable ecosystems
of the arid landscape; detailed systems of ecological knowledge that closely parallel, et differ
from, the Western scientific classification; [and] management techniques to conserve
biodiversity such as the use of fire…”23
This section examines examples of management to investigate the effectiveness of these processes.
It shows an embedded and ongoing tension in the differences between Western scientific and
bureaucratic structures and assumptions, and Anangu society and beliefs, which is expressed in the
detail of management operations and policy decisions.
Mala
Australia has the worst record of mammal extinctions in recent times of any country in the world,
with arid and semi-arid ecosystems having the highest rates of extinctions and decline.24 Three
key factors have been identified as causing these extinctions: habitat clearing, introduction of nonnative animals, and changes to fire regimes. Among the mammals that have become regionally
extinct in the area is the rufous hare-wallaby (Lagorchestes hirsutus). This small animal is known
24 McKenzie et al. 2007.
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to Anangu as mala, and Mala Tjukurpa (the Mala Law) is central to Anangu culture. One of the
creation stories for Uluru tells of the journey of the Mala ancestors, who travelled to Uluru from the
north. This Mala Tjukurpa connects Uluru to places to the north, south and south-east, embedding
Anangu cultural meaning across the landscapes, including areas far outside the Park.
At a 1999 cross-cultural workshop, Anangu identified mala as one of the priority species for
reintroduction to the Park’s ecosystems. Since 2005, the Mala Project has successfully bred, from an
initial group of 24, a population of more than 200 mala in a 170 hectare predator-proof enclosure.
Anangu also support the reintroduction of a number of other locally extinct species, including mitika,
the burrowing bettong (Bettongia lesueur), wayuta, the common brushtail possum, (Trichosurus
vulpecula), ninu, the bilby (Macrotis lagotis) and waru, the black-footed rock wallaby (Petrogale
lateralis).25 Like all management at Uluru-Kata Tjuta, the Mala Project attempts to navigate a path
through Western scientific perspectives and Anangu cultural tradition. How successful this is depends
on the commitment and involvement of both Anangu and Park management.
All extant mala derive from 24 animals captured in the Tanami Desert in 1998. One of the
challenges this creates is to avoid inbreeding within the captive populations, which Anangu
recognise in terms of Anangu marriage laws. These laws specify protocols for choosing appropriate
marriage partners within Anangu society. Uluru’s population of around 200 mala is extremely
important nationally, as only about 300 exist in total.
Mala ecology is like that of many central Australian species, with its close link to fire. Mala prefer
a particular mosaic of burnt and unburnt patches of habitat.26 Park management has determined a
ratio of 50% recently burnt to 50% regenerating spinifex areas as the optimum habitat for the captive
mala. To ensure that the mala in the enclosure are not accidentally burnt in these habitat fires, burning
is conducted at night when mala are active and can react to the approaching fire. Although burning at
night is not Anangu practice, Anangu have so far accepted this approach.
Similarly, while Anangu are very keen to use the presence of mala to teach their children and
grandchildren mala law, constraints around Western animal ethics procedures, occupational health
and safety, and other bureaucratic processes make it increasingly difficult for Anangu to do this.
During interviews, the Working Group indicated that some young Anangu are assisting in the
annual population surveys and the Aboriginal ‘Junior Rangers’ are occasionally taken to the mala
enclosure, but they are concerned that most children remain ngurpa/unfamiliar with mala and their
ways. Anangu continue to teach mala inma, the dances and song narratives associated with the
mala at Uluru. Anangu aspire to see more opportunity to directly teach about mala with the support
of the non- Anangu Rangers, while some of the older people who grew up with these animals are
still alive. Support may include such things as providing vehicles and time to accompany groups to
track by day, observe within the enclosure at night, produce and show films about mala as well as
access to ara irititja [a multi-media cultural heritage database], and to the Park’s database, including
recordings of cultural stories.
25Waru has been reintroduced to an enclosure on Anangu-controlled lands in South Australia, under Anangu control and
in collaboration with Western scientists (see Muhic et al. 2012).
26 Lundie-Jenkins 1993.
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Fire
Tjilpi tjutangku waru tilintjaku ngurkantara tjunkupai ngura uwankaraku atunymankupai
wirura pukulpa ngaranytjaku munu wati yangupala tjuta nintilpai ka tjana nyakula mulamularingkula nintiringkupai. Tjilpingku kutju tjukurpa palunya miil-miilpa tilintjaku tawara
tjukarurungku atunymara wati yangupala tjukarurulpai ka kuwari nganana palumpa waru
tilintjikitja mukuringanyi ukiri wiru pakantjaku mai tjuta kampurarpa tjuta kutjupa kutjupa winki.
“The senior men select the areas for burning, look after all the places and teach the young men.
They watch and really learn about the proper way to do things well. The senior men are the
ones that ensure sacred places are not burnt and look after the young men so burning is done
correctly according to traditional law. Presently we want to use it, fire, to get good green regrowth
in grasses and regenerate bush foods like the desert raisins and the various other plants.”
Jim Nukiti
Traditional burning of the Uluru area ceased when Anangu were forced away from the area in the
1930s, resulting in large wildfires through the Park in 1950 and 1976, and mala became extinct
in the wild soon after that. Anangu were able to begin burning appropriately again when joint
management commenced. The use of fire is a clear recognition of the significance of Anangu
knowledge and management in preserving World Heritage values. This reintroduction of Anangu
burning has increased protection from wildfire27 and there is significant scientific literature
demonstrating the positive biodiversity outcomes of northern Australian Aboriginal fire regimes.28
Anangu fire knowledge is held by particular Elders and transmitted orally and experientially to
younger people over time. The early years of joint management were a period of Anangu teaching
non-Aboriginal people about the correct way to burn Country. The Western science of fire is
comparatively recent, with most research in Australia being developed over the last few decades.
There is now a general level of dialogue between Indigenous burning practices and Western
approaches to fire management.29
While regular burning has been a feature of Park management since Handback, the level of
Anangu control over and involvement in burning has fluctuated. With increasing bureaucratic
regulation of activities in the Park, Anangu face a number of challenges to the level of their
involvement. These regulations, for example, exclude the involvement of children. To continue the
tradition of teaching grandchildren, Anangu are having to go off-park, into the Petermannn and
Katiti Land Trust areas, to burn in ways which are culturally appropriate and under their control.
There are also quite tight prescriptions, identified from a Western perspective, on when and how
burning can be done, which are not necessarily reflective of Anangu cultural tradition or knowledge.
Anangu decision-making processes do not always mesh well with increasingly regulative planning
27 See Reid et al 1993, Director of National Parks 2010a
28 See Woinarski et al. 2007; Gammage 2011; Bliege Bird et al. 2012.
29 Murphy and Bowman 2007; Vigilante et al. 2009.
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processes, and limits on the resources available within the organisational structure restrict both
the range and number of burns planned. If there is less flexibility or fewer resources available within
the organisational structure with which to involve and incorporate casual employees in the adaptive
planning and conduct of burning throughout the season, then there will be less Anangu involvement
in the Park’s fire management program. One of the Anangu strengths is the ability to make and
adapt fire plans in response to changing environmental circumstances throughout the year.
The current Plan of Management says that “fire management is integral to Tjukurpa and there
are expectations that skills and knowledge will be passed through generations of Anangu and
practised in day-to-day management”.30 However, in interviews, Anangu described the fire
management in the Park as being about essentially protective burns planned by Park staff in the
winter, when they cautiously burn spinifex Kutju-kutju tilira nyanganyi/one by one watching Kapitjara
kutju/with water tanks available. They try not to burn within mulga areas or near Mulgara (a small
marsupial carnivore) or tjakura (Great Desert Skink). Anangu would like to see more direct teaching
of the creative Anangu way within the Park, and to be asked/altinyi to plan and do these type of
burns more often. It was said that elder Reggie Uluru and the young fellas go to Patji, look at the
grasses drying and, when the time is right, they can burn within mulga areas to create grass for
animals, and on the sand plains to produce bushfoods for Anangu. Anangu light fires ‘putingka
kutju’/in the bush, outside the Park for these purposes, as well as to communicate: the quote at the
beginning of this section reflects some of these Anangu aspirations.
The climb
Ananguku ngura nyangatja ka pukulpa pitjama. Nyakula munu nintiringkula Anangu
kulintjikitjangku munu kulinma Ananguku ara kunpu munu pulka mulapa ngaranyi.
Nganana malikitja tjutaku mukuringanyi nganampa ngura nintiringkunytjikitja munu Anangu
kulintjikitja. Kuwari malikitja tjuta tjintu tjarpantjala nyakula kutju munu puli tatilpai. Puli
nyangatja miil-miilpa alatjitu. Uti nyura tatintja wiya! Tatintjala ara mulapa wiya.
“This is Anangu land and we welcome you. Look around and learn so that you can know
something about Anangu and understand that Anangu culture is strong and really important.
We want our visitors to learn about our place and listen to us Anangu. Now a lot of visitors
are only looking at sunset and climbing Uluru. That rock is really important and sacred. You
shouldn’t climb it! Climbing is not a proper tradition for this place.”
Tony Tjamiwa
Many tourists visit Uluru specifically to climb the monolith. The route used by tourists in climbing
the rock is the traditional route taken by the ancestral Mala men on their arrival at Uluru. It is
consequently of great significance to Anangu, and Anangu have long been opposed to the climb.
Tjukurpa requires Anangu to look after visitors to their country – when visitors are killed or injured
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on the climb, Anangu participate in the grieving. So far, more than 30 people have died and many
more have been injured on the climb.
“That’s a really important sacred thing that you are climbing... You shouldn’t climb. It’s not
the real thing about this place. The real thing is listening to everything. And maybe that
makes you a bit sad. But anyway that’s what we have to say. We are obliged by Tjukurpa
to say. And all the tourists will brighten up and say, ‘Oh I see. This is the right way. This is
the thing that’s right. This is the proper way: no climbing.”
Kunmanara, Nguraritja31
The inappropriateness of the climb has been formally acknowledged since at least 1991 (3rd Plan
of Management) and discussed in consecutive management plans.32 The climb has nevertheless
continued to be available to tourists through the strong lobbying activities of the tourist industry.
Research has started to identify what particular segment of visitors choose to climb, and to investigate
how the creation of alternatives may reduce the interest of visitors in this. The centrality of Uluru as an
Australian icon has also been extensively analysed by researchers, including its contested ‘ownership’.33
The 5th Plan of Management (2010-2020) is significant in that it, for the first time, identifies the permanent
closure of the climb as an objective and sets out conditions to enable this. These conditions include
minimising the impact on the tourism industry and meeting the following criteria:
• the Board, in consultation with the tourism industry, is satisfied that adequate new visitor
experiences have been successfully established, or
• the proportion of visitors climbing falls below 20 per cent, or
• the cultural and natural experiences on offer are the critical factors when visitors make their
decision to visit the Park.34
While the existence of the climb has, for several decades, clearly been contrary to Anangu wishes,
and Anangu have expressed disappointment that the climb continues, the explicit objective of
permanent closure is a very positive step. However, the wording of the criteria to be met for closure
continues to create uncertainty. The move towards closure of the climb will, however, also support
the aspirations of some Anangu to develop new tourism experiences.35
Kata Tjuta
Kata Tjuta (Pitjantjatjara for ‘many heads’) is the other distinctive landscape feature in the Park,
about 30 kilometres west of Uluru and also a focus of tourist attention. The multiple monoliths
31
32
33
34
35
Quoted in Director of National Parks 2010a, p. 90.
Director of National Parks 1991, p. 61; 2000, p. 119; and 2010a, p. 92.
For example: Hill 1994; James 2007; Hueneke and Baker 2009; Robinson et al 2003; Waitt et al. 2007.
Director of National Parks 2010a, p. 92.
Director of National Parks 2010b, p. 8.
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of Kata Tjuta are, however, treated quite differently to Uluru. Kata Tjuta is sacred under Anangu
men’s law: it is at the intersection of two of the most sacred ancestral routes of the Western Desert.
Details of the special stories of this place cannot be revealed to non-Anangu, and access to some
places is restricted. Climbing of any of the 36 domes is expressly forbidden. Because Uluru was
already being accessed by tourists, in order to reassert control Anangu needed to identify which
sites they wanted closed for cultural reasons, and why. As no information is divulged about Kata
Tjuta, Anangu were able to simply indicate which areas were available for access.
The tourism industry
Ngura pulka Uluru-nya tjamulu munu kamilu iriti atunytju kanyintja tjukurpa pulkatjara.
Iniwai putukaramilantja wiya. Anangu munu piranpa tjungu ngarama. Nyuntu nyanganyi
puli wiru mulapa palu tjukurpa nyuntu putu nyanganyi munu kulini.
“Uluru is a very significant place with significant law that has been looked after and
protected by our grandfathers and grandmothers for a long time. Do not photograph it
without regard for the proper way to do this. This applies to both Anangu and non-Anangu
alike. You are seeing a really beautiful rock but you might not be seeing and considering
its cultural significance.”
Rene Kulitja
It has been argued that World Heritage designation “acts as an international top brand” for tourism.36
At Uluru-Kata Tjuta National Park, the recent Tourism Directions: Stage 1 strategy refers to “the Uluru
brand” as being nationally and internationally significant.37 An economic analysis completed in 2008
found that Uluru-Kata Tjuta National Park was “the largest contributor of economic activity to the
Northern Territory economy, followed by Kakadu National Park”.38 This demonstrates the dominance
of nature tourism, culture tourism and World Heritage in the economy of the Northern Territory. Tourism
is Australia’s largest service export industry, with significant expenditure in many regional areas.
Over the last decade, visitor numbers at Uluru-Kata Tjuta National Park have averaged around
350,000-400,000 people annually, half of whom are overseas visitors. While the monolith itself is
the focus of much tourist interest there is also significant interest, particularly from international
visitors, in engaging with Anangu culture. However, the tourism industry in the region is dominated
by non-Indigenous enterprises, with Aboriginal tourism enterprises forming a tiny fraction of these.
The Working Group said it was good that tourists came: on the whole tourists respected
Tjukurpa and enjoyed learning about it. The group said Anangu wanted visitors to learn about their
land and their law from Anangu. This was the proper way. Visitors are seen as wanting to understand
the relationship Anangu have with their country and how they look after it. They also felt a strong
36 Buckley 2004, p. 70.
37 Director of National Parks 2010b, p. 3.
38 Gillespie 2008, p. 50.
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sense of responsibility to Kanyintjikitja/look after visitors properly and said that this was done best by
following Tjukurpa as well as government law. The challenge for joint management is to find a balance
between enabling tourism while maintaining cultural traditions. For example, Anangu mentioned that,
over time, it had become more difficult to access some sites at Uluru and teach the younger people in
the proper way. The number of tourists and their proximity to sacred sites made Anangu anxious
about conducting activities there. Tourism is a key revenue source for both the Park and the Traditional
Owners, and maintaining a balance between tourism numbers and income, and appropriate privacy
and space for normal life as well as cultural activities, is a key challenge.
Aboriginal/Anangu employment
Anangu yangupala tjuta warkaku mukuringanyi panya tjukurpa wiru nintiringkunytjaku
uwankara. Munu warka wiru putitja, Tjukurpa, paluru tjananya uwankara. Tjutangku
yangupala nintiringkula kungka kulu-kulu park wiru palyantjaku. Nyaa Putitja tjuta
nintintjaku putjikata tjuta tjina wanara nyakunytjaku, paluru tjanampa ka palulangnuru tjana
nintiringanyi computerku – ngapartji ngapartji nintiringkunytjaku.
“Many young Anangu want to work and to learn about the proper way to do everything;
good land management, provide information, all the different aspects of park work. The
young men and as well as young women are learning to maintain the park well. In land
management, they are showing them, for example, how to track feral cats and then they
are learning to use computers–to learn in turn.”
Andrew Taylor
In Western nations such as Australia, employment is central to social institutions and identity.
However, this is not necessarily the case for Aboriginal people in remote communities, who often
have many cultural commitments and aspirations, as well as a desire to engage with both the cash
economy and opportunities to ‘work on Country’.39 Negotiating the relationship between a Western
work culture and Indigenous cultural frameworks is one of the many challenges at Uluru-Kata
Tjuta National Park, and there is an ongoing spectrum of approaches to this. There are essentially
three sources of employment for Anangu at Uluru-Kata Tjuta: the Park itself, the tourism industry
(including Indigenous-owned enterprises), and Indigenous organisations and enterprises.
Discussions with current Uluru-Kata Tjuta staff and those from earlier periods of the Park’s
history indicate particular changes in the relationships between Anangu and Park management
over 28 years. After the Handback, there was a very clear sense of the development of a ‘new way’
of managing the Park, with strong acknowledgement of Anangu expertise and practical strategies
to incorporate this knowledge into the Park operations. This was seen as an effective response to
an entirely new kind of relationship, based on highly exploratory approaches. Many non-Aboriginal
39 McRae-Williams and Gerritsen 2010.
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staff from the period of the Handback consider themselves very privileged to have been a part of
that process. Since then, however, there continues to be a high turnover of non-Aboriginal staff,
including in senior management positions. In many respects, there are limited opportunities for
non-Aboriginal and Anangu staff to develop effective and collaborative long-term relationships.
Since the late 1990s, changes in the legislation governing Australian Public Service activities,
including employment and procurement, have increasingly proscribed local, adaptive responses.
Employment must be ‘merit-based’ and there are requirements regarding proficiency in the English
language. As many Anangu are fluent in several Indigenous languages before English, and older
Anangu are often not literate in English, this creates clear barriers to Anangu employment in some
positions. The occupational health and safety requirements discussed earlier are standard
government regulations but clearly have the potential to affect the practice and teaching of culture
in a number of ways. A recent IUCN analysis of Booderee National Park, another Commonwealth
administered joint-managed park in south-east Australia also indicated the impact of these
regulatory and competitive environments.40
In interviews, Anangu said that a lot of Ananguku work wiyaringu/work for Anangu had finished
and non-Anangu Tjana piranpa ma paturingu/were a long way ahead in terms of employment. They
feel that what work there is for Anangu in the Park is sporadic, casual work. A higher value is put on
writing and computer literacy than on Anangu understanding of the land. It was often said there was
mani wiya/no money to be able to do more work or employ more staff to do land and cultural heritage
management work. This made it hard to play a strong role in the management of the Park. The group
said a higher priority could be placed on cultural heritage management work in order to help keep
Tjukurpa strong. This would lead to more resources being provided to get the work of protecting and
looking after/atunmara kanyintjaku the Park done by Anangu and to be able to teach younger Anangu
about this more effectively. In 2012, the Park Manager advised that five positions in the Park were held
by Anangu: the Cultural Heritage Officer, the Interpretation Officer (job-shared by two people) and two
Operations Rangers. There are also Indigenous staff from other areas of Australia employed in the
Park. In addition to permanent positions, there is a flexible casual work program that regularly employs
Anangu in a variety of areas. Typically, the permanent positions are largely protected from budget
fluctuations whereas the casual positions, which often facilitate ‘working on Country’, are subject to
cuts; the casual budget has, however, been retained at the same amount for a number of years now
while permanent positions have reduced.
Increasing centralisation of administrative control and regulation within state structures reduces
flexibility and innovation at Uluru itself, a situation recognised by current management. The Park
and World Heritage Area are now beginning to transition to a new generation of Anangu Traditional
Owners, with only a few of the Anangu involved in the World Heritage nomination still alive. This
new generation has indicated growing dissatisfaction with government structures and ways of
operating, prompting recent and ongoing discussions around ‘rethinking management’ that might
lead to new approaches.41
40 Farrier and Adams 2011.
41 Director of Parks Australia 201
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Since 1984, ‘Ayers Rock Resort’, located outside and adjacent to the national park, has been
the sole provider of accommodation for visitors to the Park. Aboriginal representation among the
resort’s nearly 600 employees was almost non-existent until recently, with only two Aboriginal
employees in 2010. However, in 2011, the resort and its company, Voyages, was purchased by the
Indigenous Land Corporation,42 with an ambitious plan to create an Indigenous tourism training
academy integrated with the resort.43 By late 2013, more than 200 Aboriginal people, including 60
trainees, had been employed and it is planned to create 350 hospitality jobs for Indigenous workers
at Uluru and elsewhere in Australia. This is clearly a major development and, while many of the
proposed positions will be for Aboriginal people from other parts of Australia, there will likely be
significant benefits for Anangu both in direct employment and training and in increasing the
acceptance of Indigenous tourism workers in the region.
There is also an active process to develop a Memorandum of Understanding between the
resort and the Park aimed at guiding more formal collaboration. This formalised approach to
collaboration, combined with the purchase of the resort by the Indigenous Land Corporation and
the potential development of activities on the Katiti and Petermann Land Trust areas, is a very
positive indication of significantly increased Anangu involvement and benefit from the tourism
industry. In interviews, Anangu said they hoped to be more meaningfully involved in the tourist
industry and to benefit more from tourism activity in the Park in the future.
Mutitjulu
Nganana wirura councilangka warkaripai Mutitjulula parka kulu-kulu atunymara kanyilpai
munula tjukaruru kanyinma ngura nganampa.
“We do good work on the Council, both at Mutitjulu and also protecting and looking after the
park. We must look after our place properly.”
Judy Trigger
Anangu, recognised as the Traditional Owners of Uluru-Kata Tjuta National Park, live within the
Park in Mutijtulu community as well as a number of other communities in the region, including
Kaltuktjara (Docker River), Pukatju (Ernabella), Utju (Areyonga), Imanpa and Amata. Increasingly,
individuals are living in Alice Springs (the regional centre) in order to access health services that
are relatively limited in Mutitjulu and other small communities. Families continue to move between
places as the need arises. They have a corporation called the Yangkuntjatjarra Kutu Aboriginal
42 The Indigenous Land Corporation is a statutory authority established in 1995 with the purpose of assisting Indigenous
people with land acquisition and land management to achieve economic, environmental, social and cultural benefits.
See http://www.ilc.gov.au/.
43 See http://www.voyages.com.au/corporate/. Voyages was purchased by the Indigenous Land Corporation on behalf of
Wana Ungkunytja, which represents the business interests of the nearby communities of Mutijulu, Imanpa and Docker
River.
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Corporation the role of which is to distribute Park rent and entry gate income to the Traditional
Owners.
One of the historic idiosyncrasies of the establishment of Uluru-Kata Tjuta National Park is that
the Park management inherited the responsibility for providing essential services (power, water,
sewage disposal) to Mutitjulu. This costs around 1 million Australian dollars, from an annual
operating budget of about 13 million, and is clearly outside normal national park management
activities. Mutitjulu has a troubled social history, reflecting that of many small and remote Indigenous
communities in Australia. It is nevertheless a key place for contemporary Anangu.
Two decades of World Heritage
Nguraritja tjuta tjana mantu, tjana ma pamparinganyi tjilpiringanyi ka tjana mukuringanyi
tjitji malatja tjutangku runamilentjaku ngulaku munu tjanampa tjitji ku.
“Naturally the traditional owners, the senior women and men are growing older, and they
want their children to be able to run the park in the future, and their children in turn.”
Nyinku Jingo
The World Heritage listing for Uluru-Kata Tjuta National Park’s cultural values is quite specific:
“The continuing cultural landscape of the Anangu Tjukurpa that constitutes the landscape of UluruKata Tjuta National Park and which… is in large part the outcome of millennia of management
using traditional Anangu methods governed by the Tjukurpa;…[and] is one of relatively few places
in Australia where landscapes are actively managed by Aboriginal communities on a substantial
scale using traditional practices and knowledge…” 44
After 28 years of joint management, it is clear that there are many successes, but also ongoing
challenges. While there are fluctuating numbers of Anangu staff within the Park, there has never
been an Anangu Park Manager and Anangu continue to be very poorly represented in the tourism
industry. The monolith of Uluru itself is an internationally recognised symbol of Australia and
Aboriginality but its recognition as a site of sacred significance has been compromised by the
continuing presence of the climb. Western science is successfully bringing back mala but with
limited Anangu control and involvement. While Anangu have had a majority of members on the
Board of Management since Handback, this does not necessarily mean that Anangu are in control.
Powerful external influences such as the tourism industry, and powerful internal influences such as
Australian government politics and processes, exert significant pressure. Anangu have often
accommodated these pressures rather than create disharmony and conflict by challenging how
these affect cultural practices.
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In the interviews, Anangu in the Working Group felt the listing was just as relevant now because
they continue to live on and look after their land today. The government understood that Uluru was
a significant place/tjukurpa pulkatjara that Anangu continued to look after. The group reaffirmed
that they Tjukurpa Kanyini/still hold to the Anangu law and that this works, together with the
government laws, to run the Park. When there is enough money, things are equal and running
properly according to both laws. They said a key to finding the balance between the two sets of law
in joint management was to Wanganara kulintjaku/listen responsively to each other/ngapartjingapartji. From the Anangu perspective, it seemed that when resources were reduced/mani wiya
it was the non-Aboriginal/Piranpa priorities and law that took precedence because the government
knew those laws well and saw them as essential. They underlined the fact that Anangu were
equally responsible and accountable under Tjukurpa. When things do not happen according to
Tjukurpa, there is trouble for Anangu. When people work closely together, things work well and joint
management is strong. The challenge is to maintain the balance and strength in joint management.
When this does not happen, things become Kali kali kuwari/not straight or lipula/level.
Anangu want to work in the Park to atunymankunytjikitjangu/look after the Tjukurpa/the cultural
landscape and the law associated with the Park, in a way that allows their children to rawangku
atunmara kanyintjaku/continue to protect and look after it properly, according to the law, when they
are gone. In the Working Group, there is a real sense of urgency about this, as ‘only two are left’ of
the generation of senior men present in the lead up to Handback. This makes teaching a crucial
priority. Senior members of the group spoke of their aging, punu piltiringu/a metaphor for the
amount of time that had passed since they began talking about this and how important it is that
people listen properly to their concerns about the future. They want their children to be able to play
a strong role in the management of the Park, as they do. They would like to see more opportunities
for younger Anangu to learn about park management and work in the Park to help keep Tjukurpa
strong.
The values underpinning Western and Anangu societies differ in many fundamental aspects.
These differences are evident in on-the-ground management activities. Institutional change in
Australian society and government, reflected in a greater concern for the regulation of risk
management and increasing economic and bureaucratic efficiency, can interact negatively with
Anangu cultural tradition. While at least some of these impacts are well outside the control of park
management agencies and Anangu, this incommensurability is reflected in joint management
tensions at World Heritage sites and other protected areas across Australia and, while often
acknowledged by management, they continue to be unresolved.
World Heritage designation at Uluru-Kata Tjuta National Park is a point of pride for Anangu
people: their cultural traditions are acknowledged as being internationally significant, and Anangu
Tjukurpa is explicitly recognised as the appropriate way to care for this Country. A central challenge
for the future is whether Western science and management can facilitate, or even allow, a process
that supports the meaningful practice of Anangu traditions of caring for country and the passing on
of this knowledge and skill to subsequent generations.
310
Acknowledgements
The information in this chapter was derived from four sources. An Anangu Working Group of
the Uluru-Kata Tjuta National Park Board of Management comprising eight Anangu Traditional
Owners held discussions with the Joint Management Officer, responding to a set of questions
about World Heritage. These people were: Anangu men (Jim Nukuti, Johnny Tjingo, Malya
Teamay), Anangu women (Barbara Tjikatu, Yvonne Yiparti, Judy Trigger, Millie Okai, Rene Kulitja)
and Joint Management Officer Patrick Hookey. Patrick collated and translated the responses. The
author interviewed several non-Indigenous Uluru-Kata Tjuta National Park staff, including the
current Manager, Acting Manager, Training Officer and others, as well as previous Uluru-Kata
Tjuta National Park staff. Two key Uluru-Kata Tjuta National Park documents were consulted
for additional statements by Anangu Traditional Owners: the 2011 Visitor Guide and the Plan of
Management 2010-2020. Both published and unpublished research and management documents
were sourced.

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312
313
No Straight Thing: Experiences of the Mirarr
Traditional Owners of Kakadu National Park
with the World Heritage Convention
Justin O’Brien1
Aus so krummen Holze, als woraus der Mensch gemacht ist, kann nichts ganz Gerades
gezimmert werden.2
Introduction
S
1
2
ince the mid-1990s, the Mirarr people of Kakadu National Park and Western Arnhem Land
in Australia have actively fought against the expansion of uranium mining on their traditional
The author acknowledges, along with Alon Confino, that, ‘memory is a malleable understanding of the past that is
different from history because its construction is not bounded by a set of limiting disciplinary rules’ (Confino 2006, p.
75). He has, nevertheless sought in his research and writing to arrive at an objective view of these events, particularly
by drawing on sources other than his own or the Corporation’s, but acknowledges that a degree of political bias
in interpreting key events and the motivations of particular actors is unavoidable. The author thanks his friend and
colleague Dr James Warden whose advice and assistance with this paper was both valuable and appreciated.
The quote, “Out of the crooked timber of humanity no straight thing can ever be made”, derives from Immanuel Kant’s
“Idea for a Universal History with a Cosmopolitan Purpose”.
Left: Mirarr senior traditional owner Yvonne Margarula on country with her nephew Marty Liddy. Photo: Dominic O’Brien
314
lands at Jabiluka.3 From 1997 to 1999, a major focus of their campaign was in the deliberations
of the UNESCO World Heritage Committee (the Committee), during which the community sought
Kakadu’s inscription on the List of World Heritage in Danger on the grounds of environmental
and cultural threats posed by the mine proposal. This paper explores the political experience of
the Mirarr with the World Heritage Convention, which, they argued, “must be seen as protecting
one of the few remaining islands of traditional culture from the relentless forces of development”.4
In opposition to the State Party, Australia (itself a Committee member at the time) but strongly
supported by NGOs and the Committee’s expert advisory bodies, IUCN and ICOMOS, the Mirarr
brought a forceful and media-focussed campaign against Jabiluka into UNESCO, placing hitherto
unprecedented public scrutiny on the standing of Indigenous peoples and the effectiveness of the
World Heritage Convention to protect World Heritage.
No other single Indigenous group has lobbied the World Heritage Committee so intensely,
networked so effectively or so challenged the Convention and its administration. The Mirarr led
an unprecedented public examination of the Committee’s decision-making and the role of its
expert advisory bodies with “an intricate set of alliances with environmental NGOs, anti-nuclear
activists, and influential organizations”.5 The Committee was unaccustomed to and unprepared for
such scrutiny and initially scrambled for an effective response, deciding in 1998 to send a special
mission to Kakadu to directly investigate the matter. In contrast was the Australian government’s
speedy reaction to what it regarded as a threat to its state sovereignty, marked by cynical and
clandestine lobbying of other State Parties and Committee members. Ultimately, the consensus
among Committee members was not to directly intervene in Australia’s management of Kakadu,
revealing the true extent to which the Committee was willing to protect heritage when a State Party
was intent on destroying it. Critical questions raised by the Kakadu debate remain unanswered,
as was highlighted in a recent summary of the debate.6 This continuing uncertainty and the allimportant role of the expert advisory bodies and staff of the World Heritage Centre, who often
played a critical mediating role during the debate, may serve as an important guide to other
Indigenous groups seeking redress in the Convention for similar challenges to their traditional
lands, cultural rights and political integrity.
Kakadu National Park
The area that would ultimately become Kakadu National Park had been earmarked for such a
future as early as 1965, when the Northern Territory Reserves Board sought approval for a
3
4
5
6
The Ranger uranium mine and Jabiluka deposit are today under the ownership of Rio Tinto subsidiary Energy
Resources of Australia (ERA). Rio acquired a controlling interest in ERA in August 2000.
GAC 1998, p. 15. Focussing as it does on the processes undertaken by the Mirarr, relevant policies of the World
Heritage Committee itself are not addressed in any detail in this piece.
Altman 2012, p. 71.
Cameron and Rössler 2013. See also Logan 2013.
NO STRAIGHT THING: EXPERIENCES OF THE MIRARR TRADITIONAL OWNERS OF KAKADU NATIONAL PARK
315
Rock art at Burrunggui (Nourlangie Rock), Kakadu National Park.
Photo: Hansjoerg Morandell (CC BY-NC-SA 2.0)
declaration from the Northern Territory Administrator.7 The park was ultimately declared under
the federal National Parks and Wildlife Conservation Act 1975 in three stages between 1979
and 1991.8 World Heritage inscriptions of the declared areas duly followed in 1981, 1987 and
1992. From the beginning, Kakadu was inscribed on the World Heritage List for both its natural
and cultural values.
Kakadu covers approximately 19,800 square kilometres of the so-called ‘Top End’ of Australia’s
Northern Territory. It is some 150 kilometres north to south and 120 east to west, and Australia’s
largest national park. Darwin, the capital of the Northern Territory, is some 250 kilometres to
the west and, to the east, lies the vast Arnhem Land plateau.9 Climatically, Balanda (European
Australians) think of three tropical seasons, namely, the monsoonal ‘wet’, the ‘dry’ and the (humid)
7
8
9
Lawrence 2000, p. 45.
Director of National Parks 2007, p. 6.
In 1931 the massive Arnhem Land region, close to 100,000 km2 in size, was gazetted an Aboriginal reserve. The
reserve lies immediately east of Kakadu, from which it is divided in the north by the East Alligator River.
316
‘build-up’.10 Local Indigenous people, Bininj,11 see six distinct seasons marked by sometimes quite
subtle natural signs.12 Kakadu’s varied landscape comprises tidal flats and mangrove forests,
floodplains and billabongs, savannah woodland, monsoon forests, hills and ridges and, to the east,
the dominant sandstone escarpment. The speciation and biodiversity is rich with 77 mammals (one
quarter of the Australian total), 132 reptiles, 27 frogs, 346 fish, over 2,000 plants, 10,000 described
insects and 271 birds (a third of the national total).13
Kakadu is, however, first and foremost a living cultural landscape in the truest sense of that
phrase (although it is not inscribed by the World Heritage Committee as such). It is host to a
rich, ancient and abiding Indigenous cultural heritage, evidenced by hundreds of thousands of
prehistoric rock art paintings, dreaming tracks and sites of cultural significance, whose ageold stories have been handed down from tens of thousands of years ago to the present day.
Inextricably linked to their land via complex totemic and kinship obligations, Bininj landowners have
two leading responsibilities – looking after country (gunred) and looking after people (guhpleddi).
These obligations are intrinsically linked and encompass a complex set of relationships and cultural
obligations between landowners, their country and other Bininj.14
The Indigenous occupancy of the region stretches back some 60,000 years, as evidenced
by one of Australia’s oldest human occupation sites, traditionally known to archaeologists as
Malakunanja II and to the Kakadu Indigenous community as Madjedbebe.15 The site, located at the
base of a sandstone outlier and replete with traditional rock art covering a wide range of styles and
time periods, is within the Jabiluka mineral lease, itself entirely surrounded by the national park.
Kakadu has always, it seems, courted controversy. Even its very inscription as a World
Heritage site was caught up in debate when, outside the World Heritage Committee’s fifth session
at the Sydney Opera House in 1981, “a massive demonstration by Australia’s Aboriginal people”
decried the listing as “the traditional landowners of Kakadu … felt that they had not been properly
respected”.16 Aboriginal observers were allowed into the meeting and during the Kakadu debate
lifted placards, some of which read “Where are the Aboriginal delegates?”, “We can’t proclaim
uranium mines World Heritage areas” and “Our heritage, no uranium mining in Kakadu”.17 Later
stages of the Park’s declaration were similarly controversial, with the opposition of the Northern
Territory Government especially strident. In the late 1990s, attention on proposed uranium mining
10 The term ‘Balanda’ derives from ‘Hollander’ and stems from the Dutch colonisation of the Indonesian archipelago, from
people (the Macassans) who traded with Bininj for centuries prior to the European conquest of the Australian landmass.
11 The term ‘Bininj’ is a local term used to refer to Aboriginal people generally. Bininj (denoting 1. person, human being;
2. Aboriginal person; and 3. man) is pronounced ‘bi-niny’ or ‘binning’, or in the International Phonetic Alphabet ‘biniɲ’.
See Bininj Gunwok Project 2013, entry for ‘Bininj’.
12 Within each of the six seasons there are more subtly defined sub-seasons, namely, the beginning, middle and end of
each season.
13 Unfortunately, feral animals and invasive plants have also arrived in considerable numbers and present significant
ongoing difficulties for park management.
14 Masterson 2010, p. 17.
15 Roberts, Jones and Smith 1990, pp. 153-156.
16 von Droste 2009, p. 8.
17 von Droste 2009, p. 11.
317
meant Kakadu again openly challenged the integrity of the World Heritage Committee, perhaps like
no other site has done, as the then Director of the World Heritage Centre has described:
“In the history of UNESCO’s World Heritage Convention no other mining case has been so
complex, controversial and of worldwide public attention than the intended uranium mining
on Aboriginal land in the Jabiluka enclave of Kakadu National Park in the Northern Territory
of Australia…” 18
Uranium mining
Mining was unilaterally imposed upon the Aboriginal community of what would become Kakadu National
Park via measures undertaken by successive federal governments over a decade, eventuating in a
mining agreement for the Ranger uranium mine signed by the Northern Land Council (NLC) in 1978.19
Ranger was, by any reckoning, a done deal well ahead of any reference to the traditional landowners,
with export contracts to at least Japan issued in 1972, federal ownership of 50% of the mine secured
in 1974, repeated supply commitments to overseas purchasers throughout the 1970s and the denial
in 1976 of the otherwise customary Aboriginal capacity to veto the development.20 The move to
proclaim the surrounding Kakadu National Park was concurrent with the push for mining at Ranger
and, notably, the government purposefully stalled the former until the latter was secured.21 Following
the execution of the mining agreement and national park lease on 3 November 1978, authorities and
miners were free to turn their attention to the next prospect, the proposed Jabiluka uranium mine, a
deposit some 20km north of the Ranger deposit discovered in June 1971 and which dwarfed Ranger
in both volume and grade of uranium.22 In the wake of the Ranger agreement, a sober and ultimately
accurate assessment of Kakadu was made by Friends of the Earth, Australia:
18 von Droste 2009, p. 2.
19 The NLC is a statutory authority of the federal government established by the Aboriginal Land Rights (Northern
Territory) Act 1976 to represent Indigenous landowners in transactions regarding their land, including land claims
and mining and other land use negotiations. The historical aspect of the debate over uranium mining in the Kakadu
region has been extensively dealt with elsewhere, including O’Brien 2003; Trebeck 2009; and Scambary 2013. For
the present purposes it should be recognised that as a territory of the federal government with low political exposure
(the entire current population of the Northern Territory today is a mere 230,000), it was feasible for the government to
implement Aboriginal land rights there. Due to decisions aimed at administrative expediency, land rights sadly became
the vehicle through which the government pursued and executed its mining agenda in Kakadu.
20 The capacity under the Aboriginal Land Rights (Northern Territory) Act 1976 (Commonwealth statute) to veto proposed
development on Aboriginal land was and remains enjoyed by all other Aboriginal groups in the Northern Territory
except the Mirarr people in the case of the Ranger mine proposal, their veto powers over this proposal being denied
via express provision within the Act.
21 Anthony 1978. The Cabinet submission, which was adopted, bluntly rejected Indigenous aspirations for the national
park agreement to be concluded separately to that for the Ranger mine, applying pressure for the speedy conclusion
of negotiations over mining.
22 Grey 1994, p. 37. The Jabiluka deposit also contains a considerable amount of gold.
318
“Since the setting up of the Ranger Inquiry which heard their land claim, the Aboriginal
people have received only part of the land they claim, a National park whose benefit to
them is largely a matter for the discretion of a Commonwealth Government official, and the
prospect of a number of uranium mines in what should then be called a controlled disaster
zone rather than a National park.” 23
Negotiations over Jabiluka were initially frustrated and yet ultimately facilitated by a second land
claim in the region, with talks commencing in January 1981 at a meeting where Bininj were told that
the Northern Land Council would discuss only the land claim with Jabiluka’s prospective mining
company, Pancontinental Mining. On the very evening of the meeting, notwithstanding this express
commitment, the NLC sent a telegram to Pancontinental triggering negotiations for the proposed
Jabiluka uranium mine. In June 1982, amid extreme duress culminating in an intense 10-day
‘bargaining session’, the Northern Land Council (purporting to represent local Indigenous interests)
entered into a mining agreement with Pancontinental Mining for the development of Jabiluka.24
The Mirarr oppose Jabiluka on environmental and cultural grounds and reject the 1982
agreement, and have consistently claimed that Jabiluka’s development “will destroy the unique
source of Mirarr language, culture, sacred sites and living tradition”.25 The foremost cultural
concern is the protection of the Boyweg-Almudj Sacred Site Complex within the mineral lease.26
Jabiluka’s development was thwarted, however, the following month when the national conference
of the Australian Labor Party arrived at a new national policy on uranium mining. After a bitter and
divisive debate, the final position, among other things, precluded the development of new uranium
mines, in effect permitting existing mines (including the Ranger mine, although it was not named)
to continue but preventing the development of the Jabiluka deposit.27 The fundamentals of what
became known as the ‘three mine uranium policy’ remained intact throughout the 13 years of
the Labor Party’s tenure in government from 1983 to 1996, ensuring Jabiluka was not developed
during this time. In March 1996, a Liberal-National conservative coalition led by John Howard
formed a new federal government and promptly announced the scrapping of the restrictive uranium
policy. With this, the battle to prevent mining at Jabiluka recommenced for the Mirarr and their civil
society campaign colleagues across Australia and the globe.
Within four months of the election of the Howard government, the new Environment Minister,
Senator Robert Hill, was proudly taking credit for advancing the Jabiluka mine proposal.28 Toward
23 Lawrence 2000, p. 105.
24 In the early 1990s Pancontinental sold its mining lease to Jabiluka to Energy Resources of Australia, a company which
already owned and ran the nearby Ranger mine.
25 GAC 1999, p. 8.
26 GAC 1998, pp. 12-13. The Mirarr contest the validity of the 1982 Jabiluka agreement on the grounds that it was
negotiated under extreme duress and involved unconscionable conduct on the part of the federal government and the
Northern Land Council. See GAC 1997b, p. 19 ff.
27 Panter 1991, p. 7. The federal executive’s control over the issuing of export permits was the mechanism by which it
controlled the number of operational uranium mines.
28 Hill 1996.
319
Map 1: Kakadu National Park and the locations of the Jabiluka, Ranger and Koongarra uranium deposits.
Adapted from a map provided by the Department of Sustainability, Environment, Water,
Population and Communities, Government of Australia
the end of 1997 the Resources Minister, Senator Warwick Parer, announced he had “cleared the
way for the Jabiluka uranium project to proceed”.29 The renewed threat to Mirarr country roughly
coincided with the establishment of a new local representative body for the Mirarr. In July 1995,
frustrated at the recurrent waste (on, inter alia, bad debt and exorbitant management costs) of
29 Parer 1997.
320
mining royalty income from the Ranger mine by the then royalty receiving entity, the Gagudju
Association, the Northern Land Council incorporated a new Aboriginal corporation to represent
Mirarr interests. Unlike Gagudju, the membership of which comprised over a dozen clans, the
Gundjeihmi Aboriginal Corporation or GAC (so named after the traditional language of the
Mirarr) was comprised solely of and directly accountable to Mirarr traditional owners.30 The new
corporation quickly found itself pitted in a struggle to protect Jabiluka’s sacred lands from uranium
mining. By the end of the year, Mirarr senior traditional owner, Yvonne Margarula, had appointed
a new executive officer to the corporation, the outspoken and compelling Jacqui Katona.31 With
a forthright and gifted radicalism, coupled with a great capacity to network across traditional
cultural and organisational divides, Katona perfectly complemented the understated but discerning
traditional Aboriginal mien of Yvonne Margarula. Supported by GAC staff and NGO campaign
colleagues, they led an unprecedentedly high-profile campaign to protect Jabiluka from mining,
travelling Australia and the world and securing numerous prestigious awards and widespread
civil society support. With a national speaking tour, protest actions in the Northern Territory and
Australia’s major cities, significant media coverage and the strong support of civil society, they
literally made ‘Jabiluka’ a household name in Australia.
Throughout 1997 and 1998, other domestic and international campaign initiatives against
Jabiluka were carried out and secured significant media coverage and political concessions for the
Mirarr in their bid to prevent the development. In 1997 a coordinated national campaign instigated
by Mirarr via the Gundjeihmi Corporation and major national environmental NGOs, primarily the
Australian Conservation Foundation, The Wilderness Society and Friends of the Earth, was bearing
significant fruit.32 Minor political parties, the Australian Democrats and the Australian Greens, had
joined the public opposition to the Jabiluka proposal in its early days and were to remain strong
supporters throughout the years ahead.33 A well-coordinated blockade of the Jabiluka mine site
from March to October 1998 drew over 5,000 protesters from across Australia and the world to
join the Mirarr in their struggle. Over 530 protesters were arrested during the eight-month peaceful
blockade of the mining site.34 With its mix of Indigenous rights, environmental and anti-nuclear
activism, the Jabiluka blockade quickly became a lightning rod for the progressive left in Australian
30 The spelling of the corporation’s name was formally altered in 2002 from ‘Gundjehmi’ to ‘Gundjeihmi’, in line with the
standard orthography developed for the Gundjeihmi language. The spelling of the clan name Mirarr was similarly
altered (from Mirrar to Mirarr) to reflect standard orthography. The contemporary spellings are used throughout.
31 An Indigenous woman of Kakadu heritage (Djok clan) with family connections to the Mirarr, Katona had previously
worked on the two seminal Indigenous political milestones in the latter part of the twentieth century, the Royal
Commission into Aboriginal Deaths in Custody (1987-91) and the ‘Bringing Them Home’ National Inquiry into the
Separation of Aboriginal and Torres Strait Islander Children from Their Families (1995-97).
32 Mirarr received support from a wide variety of NGOs and professional representative bodies internationally,
encompassing the medical profession, unions, universities, anti-nuclear groups, Indigenous rights organisations,
peace and a large number of environmental groups.
33 The 1999 Senate inquiry into Jabiluka was a prime example of this political support.
34 The blockade was operated by a central committee of NGO representatives and protestors acting on the instructions
of the Gundjeihmi Aboriginal Corporation. The campaign brought the issue of uranium mining in Kakadu into the
headlines and swayed public opinion such that, by 1998, a Newspoll survey found that 67% of Australians opposed the
mining proposal.
321
Yvonne Margarula and Jacqui Katona lead a Jabiluka blockade march through Kakadu National Park in 1998.
Photo: Clive Hyde
politics, particularly given the vexation among the left at the obstinacy of the Howard government
on environmental issues and over recognising the rights of Indigenous Australians. Indeed, the
government’s approach to the Jabiluka controversy was considered, by at least one prominent
commentator, to be “an unmistakable test of the new Government’s commitment to reconciliation
with Aboriginal people”.35 For many, the government failed that test.
From its inception, the Mirarr campaign focussed on cultural, social and environmental protection
in the context of the Kakadu’s World Heritage status. Publicly restating her opposition to Jabiluka
in June 1997, Yvonne Margarula requested that an assessment of the social impact of mining
be completed “independently of government, land council and mining interests”, underlining the
Mirarr lack of faith in the jurisdictional arrangements determined by government.36 The campaign
differentiated itself from previous major Australian environmental campaigns with its extensive and
vociferous emphasis on the cultural rights of Kakadu’s original owners. These rights, it was argued,
had been ignored, misrepresented or impaired by what Mirarr regarded as discriminatory decisions
by government and corporate agencies whose authority was deemed illegitimate. A GAC media
statement from 1997 entitled ‘This is bullshit’, in which Ms Margarula questioned the authority of
35 Hamilton 1996, p. 17.
36 GAC 1996.
322
the Alligator Rivers Region Advisory Committee, is a prime example of this emphasis.37 She told
committee members:
“You treat me like an animal. That is my Country, I have dreaming for that Country. What do
you have, what do you know?” 38
The GAC were responding to the marginalisation of Indigenous people from decision-making
over their traditional lands, a distinct feature of the imposition of uranium mining development on
Kakadu. This negative dynamic of depriving meaningful Indigenous agency and relegating Mirarr
to the role of observer-stakeholder was already recognised and had been considered by the 1984
‘Consolidated Report on the Social Impact of Uranium Mining on the Aborigines of the Northern
Territory’, prepared by the Australian Institute of Aboriginal Studies after an intensive and expert
six-year study.39
The Mirarr campaign had a particularly strong international focus, drawing significant overseas
civil society support and the active interest of several key intergovernmental agencies. In January
1998, the European Parliament passed a resolution calling on the Australian government to
“respect the status of the Kakadu National Park as a World Heritage site”, “respect the land rights
of the Aboriginal Peoples” and “not to proceed with the [Jabiluka] project”.40 By April 1998, protest
organisers in Melbourne, Sydney and Brisbane had mustered over 7,000 people to march against
the Jabiluka proposal.41 In July, Yvonne Margarula was awarded the inaugural Nuclear Free Future
Award by an international panel of prominent authors, physicians and civil rights activists, in
recognition of her tireless grassroots campaigning.42
It was against this backdrop that the campaign of the Mirarr people and their supporters in
(primarily) environmental NGOs turned to the World Heritage Committee, calling on the Committee to
inscribe Kakadu on the List of World Heritage in Danger on the basis of threats posed by Jabiluka’s
proposed development. Given the renowned standing of the World Heritage Convention and the
Australian government’s pride in Australia’s long-standing role in the Convention, no other single
initiative during the Jabiluka campaign stirred as much government attention and activity as the World
Heritage debate. Senator Robert Hill told an Estimates hearing of the Senate in February 1999 that
around one million dollars had been dedicated to preventing an ‘In Danger’ listing for Kakadu.43
37 The Alligator Rivers Region Advisory Committee is a statutory forum of government, industry and NGOs addressing the
environmental issues associated with uranium mining in Kakadu and is established under Part III of the Environment
Protection (Alligator Rivers Region) Act 1978 (Commonwealth statute).
38 GAC 1997a.
39 Australian Institute of Aboriginal Studies. Uranium Impact Project Steering Committee 1985, p. 130. Comprised of
eminent Australian and international experts, the committee’s work was insightful. Sadly, its recommendations were
largely unheeded.
40 European Parliament 1998.
41 Ceresa 1998.
42 Ryan 1998.
43 Australian Parliament 1999a. The Howard government ultimately downplayed the extent of the financial cost of
defending its position on Jabiluka, later scaling down this figure substantially.
323
UNESCO
The first obstacle confronting the Mirarr in their bid to bring the Jabiluka dispute before the
UNESCO World Heritage Committee was that they simply had no standing. The Committee is
comprised solely of State Parties. At the time it also included Australia which was clearly acting
against the interests of the Indigenous landowners in the Kakadu debate. From early 1997, using a
Sydney-based legal representative, Bruce Donald, the GAC commenced a process of, firstly, having
their independent submissions considered by the Committee and, secondly, securing observer
status at Committee meetings via correspondence directly to the World Heritage Centre and to the
Convention’s expert advisory bodies, particularly IUCN and ICOMOS. The first reply from the World
Heritage Centre, in February 1997, underscored the fact that State Parties were responsible for
reporting on the state of conservation of World Heritage properties and therefore urged that future
Mirarr communications be sent “directly to the relevant authorities within the Government of Australia”,
although it was recommended that copies be forwarded to the Centre, IUCN and ICOMOS.44 Earlier
considerations by IUCN of the dangers to Kakadu’s status posed by Jabiluka’s development proved to
be invaluable to the Mirrar campaign. IUCN’s initial interest had been prompted by the October 1996
session of the World Conservation Congress, during which a formal recommendation was passed
noting that “mining in Jabiluka … has the potential to damage the natural and cultural values of
Kakadu” and urging “the Government of Australia to prevent the development of Jabiluka … should it
be shown that such mining would threaten the Park’s World Heritage values”.45
Meanwhile, in Australia in August 1997, the federal government’s environmental impact
assessment had concluded that “there does not appear to be any environmental issue which would
prevent the preferred Jabiluka proposal from proceeding”, and Senator Hill issued 77 “strict and
stringent” conditions on the mine’s development. The conditions were largely technical and related
to mining operations, although a number directly addressed matters of cultural concern, including
the need for a cultural heritage management plan to be completed.46
In the December 1997 World Heritage Bureau and Committee meetings in Naples, the IUCN
formally conveyed its concerns regarding Jabiluka and tabled the World Conservation Congress
resolution. IUCN reported that ‘Australian groups’ were proposing that the site be considered for the
List of World Heritage in Danger.47 Not considered at the meetings, however, was the submission on
the matter from the GAC, the direct representative body of the Mirarr. In a subsequent explanation
to Bruce Donald, the then World Heritage Coordinator of ICOMOS, Dr Henry Cleere, made it plain
that Australian government intervention had thwarted consideration of the GAC submission. Dr
Cleere explained that the Secretary General of ICOMOS, Jean-Louis Luxen, had met with the
Australian delegation, the World Heritage Centre and representatives of IUCN and that Luxen had
44
45
46
47
Ishwaran 1997.
Recommendation No. 1.104, “Conservation of Kakadu World Heritage Site, Australia”. See IUCN 1997.
Hill 1997.
UNESCO 1997, p. 13.
324
informed him “that it had been decided not to bring this before the Bureau, since it was the subject
of a public enquiry and no decisions had yet been made.” 48
The manner in which the World Heritage Committee declined to consider GAC’s submission in
1997 was not lost on the Corporation and its campaign colleagues. The following year, in the lead
up to the twenty-second session of the Bureau in June 1998, the GAC and various NGOs mounted
a persistent and ultimately successful lobbying effort to secure accredited observer status. Notable
among the supporters of the GAC was former Australian Prime Minister, Gough Whitlam, who
wrote directly to the World Heritage Centre requesting that the GAC delegation be granted status.49
Alongside this, environmental NGOs across Australia were individually writing to the Director of the
Centre requesting the same.50 Finally, the delegation, comprising Yvonne Margarula, Jacqui Katona
and GAC staffer Christine Christophersen and Alec Marr of The Wilderness Society, was granted
observer status, notwithstanding concerns raised at the meeting from the Japanese delegation that
a precedent should not be set by allowing such access.51
Observer status came at a crucial time in the debate, enabling Mirarr representatives and their
supporters to maximise the support of the advisory bodies in direct lobbying of State Parties at the
June 1998 Bureau meeting. The Bureau was informed of correspondence from “the lawyer for the
Mirarr Aboriginal people” (Bruce Donald) which referred to the Bureau and Committee responses
on the state of conservation of Kakadu at the twenty-first sessions as “entirely unsatisfactory”
and of a submission from four eminent Australian scientists highly critical of the quality and
process of Jabiluka’s environmental impact assessment and calling for a new assessment.52 The
support of the distinguished Australian pre-historian, John Mulvaney, with his long association
with both the international heritage community and the convention itself, as well as the respect he
commanded at the World Heritage Committee, was also important at this time.53 The secretariat
and chairperson also referred to the “many letters they had received which expressed concern
about the state of conservation of Kakadu National Park and called for the inclusion of Kakadu
on the List of World Heritage in Danger”.54 IUCN presented a statement to the Bureau in which it
reminded State Parties of the 1996 World Conservation Congress resolution, referred to a June
1998 draft policy on “mining and associated activities in relation to protected areas” adopted by
48
49
50
51
Cleere 1997.
Whitlam 1998.
The Wilderness Society 1998.
UNESCO 1998a, p. 2. The Chairman replied to these Japanese concerns “by stressing that the decision of the Bureau
would not constitute a binding precedent as the Rules of Procedure clearly allow the World Heritage Committee and its
Bureau to decide on the participation at each meeting”.
52 Ibid., p. 14. The four scientists, Professor R. J. Wasson, Professor I. White, Dr B. Mackey (all of the Australian National
University) and Mr M. Fleming (consulting eco-hydrologist), originally wrote to the World Heritage Committee on 22
June 1998. Their correspondence was ultimately incorporated into a formal submission to the 1998 UNESCO Mission
to Kakadu (Wasson et al. 1998).
53 Mulvaney would later provide additional important assistance to the Mirarr in their efforts, releasing previously
unpublished rainfall data (critical to the accurate prediction and impact of severe weather events) from the community
of Gunbalanya (or Oenpelli) in the vicinity of the Jabiluka site in his submission to the 1998 Mission to Kakadu. See
also Mulvaney 1998.
54 UNESCO 1998a, p. 14.
325
IUCN’s World Commission on Protected Areas, and stated that IUCN was “not in possession of
information on the 77 conditions set by the Australian Government” on the Jabiluka’s development
and was therefore “unable to make any assessment of their adequacy or otherwise”.55 Critically,
the IUCN statement concluded: “if invited to do so and provided with the necessary information and
resources to support a multi-disciplinary team, IUCN would participate in a mission to assess the
situation and report to the Bureau/Committee”.56
In response, the Australian delegation argued, inter alia, that the mine would not be within or
impact upon the World Heritage area, that the Mirarr traditional owners’ opposition to the mine’s
development was a minority position among local Aboriginal people, that the 77 conditions set on
Jabiluka’s development would protect the park’s World Heritage values in terms of environmental
impact, and that the social impacts of the development were catered for in the (government-controlled)
Kakadu Region Social Impact Study (KRSIS) then underway.57 Seeking to downplay the significance
of the Boyweg-Almudj sacred site complex, the Australians were also somewhat mischievous in their
interpretation of the findings of an Aboriginal Areas Protection Authority (AAPA) investigation into
whether the site complex should be formally registered as a sacred site, stating that the Authority had
“examined the site and has concluded that there is insufficient evidence about this site to register it as
a sacred site”.58 Firstly, it was plainly misleading to focus on a single site when the Mirarr contention
and the AAPA investigation related to a complex of sites focussed on the Boyweg (knob-tailed gecko)
and Almudj (rainbow serpent) sacred sites and the dreaming track that connects them. Secondly,
insufficiency of evidence was not the reason AAPA had declined to register the site, as was made
plain in correspondence at the time, and later confirmed in evidence to the 1999 Australian Senate
inquiry into Jabiluka. During that evidence, AAPA’s Chief Executive Officer, David Ritchie, told the
Committee that the Authority had declined to register the site because of disagreement over the
extent of the site and features and stories associated with it, adding that the Authority’s finding “in no
way was a statement that the area was not a sacred site”.59
Despite the ardour of the Australian delegation, the Bureau, citing the “importance, complexity
and sensitivity of the issue”, proposed that a mission to Kakadu be undertaken, headed by the
Chairperson of the World Heritage Committee, Francesco Francioni, with participation from the
Director of the World Heritage Centre, Bernd von Droste, IUCN and ICOMOS.60 In a concession
55 IUCN 1998, p. 2.
56 Ibid.
57 UNESCO 1998a, Annex VII. The GAC had, by this time, largely dissociated itself from the KRSIS process, arguing that
it was overly influenced by a pro-development agenda, that its make-up and administration unfairly precluded Mirarr
and inadequately addressed the likely social impacts specifically associated with Jabiluka’s development.
58 Ibid.
59 Australian Parliament 1999b. AAPA is a statutory authority of the Northern Territory Government.
60 The mission comprised Professor Franceso Francioni (Chairperson of the World Heritage Committee and leader of
the mission), Dr Bernd von Droste (Director, UNESCO World Heritage Centre), Dr Patrick Dugan (IUCN), Dr Patricia
Parker (ICOMOS), Dr John Cook (US National Park Service) and two Australian government appointees – Professor
Jon Altman and Dr Roy Green. The mission was also ultimately accompanied by two State Party Observers, namely
the then Supervising Scientist, Dr Peter Bridgewater, and the First Assistant Secretary Australian and World Heritage
Group of the Environment Department, Sharon Sullivan.
326
to the Australians, it was ultimately (later) agreed that two Australian nationals would be “invited
to be permanent member[s] of the team”, with attributes including “perceived impartiality by the
Australian community in relation to the public debate about uranium extraction at the Jabiluka
site”.61 The mission would examine the situation, hold discussions with Aboriginal groups, including
the Mirarr, officials, NGOs and Energy Resources of Australia (ERA) and report to the Bureau and
Committee at their November-December 1998 sessions.62 Publicly, Senator Hill downplayed the
significance of the mission by portraying it as “standard practice”.63 Notwithstanding this modulated
analysis, the World Heritage Centre proceeded with what would ultimately be “the largest-scale,
most expensive mission in the history of the World Heritage process”.64 Preparation was not trouble
free, with the Australian government, via Senator Hill, successfully delaying the mission on the
pretext of the announcement of a federal election, something that the mission head and Committee
chairperson later said made “the preparation of the report much more difficult time-wise”.65
Ultimately, the mission visited Australia and conducted its business from 26 October to
1 November 1998, holding meetings in both the Northern Territory and in Canberra.66 The two
Australians appointed to the mission were geologist, Dr Roy Green, and social scientist, Dr Jon
Altman, notwithstanding correspondence from the GAC to the World Heritage Centre stating that
Dr Altman should not be appointed given his “perceived bias towards the development of the
Jabiluka uranium mine”.67 The then Director of the World Heritage Centre, Bernd von Droste, has
subsequently described his task of organising the mission (“for which the Australian government
showed no enthusiasm”) as “quite an undertaking”.
“The tactic the government employed was to delay the mission to the furthest extent possible
despite the fact that the Committee members had underlined its urgency. Another move
was to submerge the international participants of the mission by government appointed
Australian participants.” 68
The mission visited Kakadu and met with Mirarr and the Kakadu Board of Management, government
officials and representatives of the mining company Energy Resources of Australia. In Darwin, the
mission met with the Northern Territory government and in Canberra it met with a wide variety
of senior government representatives, environment groups, industry representatives and eminent
academics. Despite initial resistance from the Australian government, the Gundjeihmi Aboriginal
Corporation was afforded an additional opportunity of addressing the mission in Canberra.69
61
62
63
64
65
66
Wardrop 1998.
UNESCO 1998a, p. 14.
ABC 1998.
Aplin 2004, pp. 152–174.
Francioni 1998.
The Mission itinerary, it should be noted, was hotly debated in correspondence between the GAC, the World Heritage
Centre and the Australian government, with the GAC eventually securing independent status with the Mission.
67 Katona 1998.
68 von Droste 2009, p. 22.
69 UNESCO 1998c.
327
The Mirarr presented a 20,000-word submission to the mission team, detailing the cultural
desecration caused by the Ranger mine and the threat of a complete loss of cultural identity
posed by Jabiluka’s proposed development. They were allocated four hours to show the mission
cultural sites on the Jabiluka Mineral Lease and their living conditions within Kakadu National
Park. In their submission “the Mirarr argued that the actual and potential threats to their living
tradition and culture posed by further mining on their land required that Kakadu be inscribed on
the List of World Heritage In Danger”.70 During the mission’s visit to the Mirarr and Gundjeihmi
Corporation in Kakadu, the Australian members and observers were not permitted to attend,
at the express wish of the Mirarr, leaving the Director of the Centre, Bernd von Droste, to later
note that “no doubt the government and the Mirarr people were not on speaking terms.” 71
Archaeologist John Mulvaney has described the Australian government’s management of the
mission:
“It disparaged the expertise of the prestigious committee, having ensured that during its visit
to Kakadu the committee’s contact with critics was minimal. As a person giving evidence
to that committee I can vouch for the contrivances employed by the host department to
achieve that end. Nations on the World Heritage executive committee were extensively
lobbied while taxpayers funded a three-week visit to Paris by the minister and several
senior staffers. They secured a reversal of the recommendation.” 72
The final report of the mission was sent to the Australian authorities on 24 November, just days
ahead of the twenty-second extraordinary session of the Bureau, in Kyoto. The report provided 16
recommendations addressing the cultural, social and environmental threats posed by Jabiluka’s
imminent development. The first recommendation stated that the mission had “noted severe
ascertained and potential dangers to the cultural and natural values of Kakadu National Park posed
primarily by the proposal for uranium mining and milling at Jabiluka [and] … therefore recommends
that the proposal to mine and mill uranium at Jabiluka should not proceed”.73 Noting that some of
Australia’s “most eminent scientists” had given information as to “the unacceptably high degree of
scientific uncertainties relating to the Jabiluka mine design, tailings disposal and possible impacts
on catchment ecosystems”, the mission applied the application of the precautionary principle,
“which requires that mining operations at Jabiluka be ceased”.74 The Australian appointees to the
Mission, in correspondence from Dr Jon Altman, dissented from the key Mission recommendations,
including that the Jabiluka development be halted.75 Opposed to the “no-mining statement” of the
Mission report, the letter from Dr Altman argued that the Ranger mine had existed “adjacent to the
70 Fagan 1999b. Matthew Fagan, an employee of the Gundjeihmi Aboriginal Corporation, was a former adviser to the
Australian Greens.
71 von Droste 2009, p. 23.
72 Mulvaney 2007, p. 159.
73 UNESCO 1998c, p. v.
74 Ibid.
75 Altman 1998.
328
World Heritage Area, for nearly twenty years”, that “world-class work” had been carried out there
and that mining and World Heritage need not be considered as mutually exclusive.76
There was significant jockeying by the GAC and its civil society campaign colleagues ahead
of the Kyoto meetings of the Bureau and Committee, which were again attended by GAC. During
his presentation on the mission to the Bureau, chairperson Francioni described how the Australian
Government, in correspondence from both the Environment Minister Robert Hill and Foreign Affairs
Minister Alexander Downer, had sought to have the Kakadu mission report withdrawn from the
meeting’s agenda on the grounds that the government had been given insufficient time to properly
consider the report.77 Stressing that it was imperative for the mission to fulfil its mandate by presenting
the report to the twenty-second session, the chairperson noted that “the Australian Government ha[d]
been privy to the work of the mission since its inception” and that the mission had met with the Minister
and the Secretary of Environment Australia in Canberra and expressed “in an open and candid manner
what trends were emerging from the hearings and briefings”. The Chairperson said that he was of the
opinion that as chairman of the Committee, he should fulfil the mandate provided at the last session
of the Bureau, adding that the Bureau “is faced with an urgent situation as the construction of the mine
at Jabiluka, located within an enclave excised from the World Heritage property, is proceeding.”78 On
this basis, the Bureau went on to consider the mission report.
Privately, Francioni had become “livid with anger” on hearing of the Australians’ request and
“threatened to step down as World Heritage chair if Kakadu would be deleted from the agenda.”79
Bernd von Droste later conceded that Australia had undertaken “a lobbying campaign of a magnitude
never before experienced in the World Heritage Committee”.80 In addition to its diplomatic efforts to
have the mission report withdrawn from the Bureau session, the Australian Government separately
wrote to von Droste arguing that the Mirarr viewpoint was a minority one that contradicted earlier
(allegedly 1982) consents for mining, that mining operations would “not directly affect sites with cultural
heritage values within the lease area”, and that an assessment of the “one natural site of significance”
and of the social impact of the proposed development were subject to domestic processes.81
In addressing the Bureau IUCN indicated its strong support for the mission report, stating its
firm belief “that the conditions exist for inscribing Kakadu on the List of World Heritage in Danger”
and that a “failure to recognise the dangers would seriously undermine the standards [of] the World
Heritage Convention”.82 ICOMOS joined IUCN in endorsing the recommendations of the mission
76 Ibid., p. 2. Dr Altman’s actions during this episode of the Jabiluka debate, incongruent with his career generally, clearly
escaped his attention in his recent summary of the debate. See Altman 2012, p. 60.
77 UNESCO 1998b, p. 28. See also Hill 1998, and Downer 1998.
78 UNESCO 1998b, p. 28.
79 von Droste 2009, p. 32. Von Droste considered the Australian request as a “delaying technique”.
80 Ibid. Elsewhere, Australia’s actions have been described as a “diplomatic offensive in the foreign capitals of Committee
members to gain support for its position.” Cameron and Rössler 2013, p. 230.
81 Sullivan 1998b. This “one site of significance” was the Boyweg site, repeatedly and somewhat misleadingly referred
to as ‘natural’ rather than cultural. There are, of course, several sites of great significance at Jabiluka and literally
hundreds of other important archaeological sites.
82 UNESCO 1998b, Annex II.
329
report. The Australian delegation argued that Australia had been given insufficient time to respond to
the mission report, that an initial reading suggested it contained errors of law, fact and analysis and
that its recommendations were therefore “flawed and unacceptable to the Australian government”.
The Australians asked the Bureau to recommend to the committee that Australia be given more time
to provide a more considered response on the mission report ahead of the next Bureau session.83
Chairperson Francioni referred to the responsibility of the Bureau to “implement the
Convention as an instrument of international cooperation not through narrow national
interpretations” and “pleaded… for reinforcement of the spirit of cooperation and fiduciary
responsibilities”.84 Following this, recommendations were drafted in closed sessions by Bureau
members prior to returning to the full session of the Bureau. This was, after some two years of
dialogue, decision time for the members of the Bureau, who found themselves in the middle of
a particularly public and passionate debate on the extent to which international obligation could
inform actions against the wishes of a sovereign government.
After a relatively brief debate the Bureau determined to provide the Australians with
additional time to respond to the mission report and to grant the following Bureau meeting (the
23rd) the mandate to inscribe Kakadu on the List of World Heritage in Danger if it deemed
such action necessary. The Bureau also noted “with concern that in spite of the dangers to
the World Heritage values, construction of the mine at Jabiluka began in June 1998 and is
currently progressing” and that “there is significant difference of opinion concerning the degree
of certainty of the science used to assess the impact of the mine on the World Heritage values
of Kakadu”. The Bureau recommended that the Australian authorities be given until 15 April
1999 to provide a detailed report on “their efforts to prevent further damage and to mitigate
all the threats identified in the UNESCO mission report, to the World Heritage cultural and
natural values of Kakadu”. Significantly, the Bureau also recommended that the Australians “be
requested to direct the Australian Supervising Scientist Group to conduct a full review of the
scientific issues” and that the review be submitted “to peer review by an independent scientific
panel composed of scientists selected by UNESCO in consultation with the International Council
of Scientific Unions and the Chairperson of the World Heritage Committee”.85
The Committee meeting immediately following the Bureau session, under the new
chairmanship of Koïchiro Matsuura of Japan, as expected, endorsed all of the Bureau’s
recommendations and added two more. Firstly, an extraordinary session of the Committee
would be conducted following the next Bureau meeting to consider the Australian Government’s
response and determine whether or not to inscribe Kakadu on the List of World Heritage in Danger
due to Jabiluka’s development. Secondly, the Committee “urged the Australian authorities and
Energy Resources Australia to immediately undertake … the voluntary suspension of construction
of the mine”.86 Several months after the Kyoto meetings a blunter, realpolitik summary of the
83 Ibid., p. 29.
84 Ibid., p. 30.
85 Ibid., pp. 31-32. The last recommendation was especially significant as it effectively dissociated the Mirarr from what would
become a strictly scientific debate among ‘peers’. The full significance of this would only be realised at a later time.
86 UNESCO 1998d, p. 19.
330
proceedings was revealed with the leaking by the then Australian Labor Party Shadow Foreign
Minister, Laurie Brereton, of “highly protected” documents showing that the government had
“embarked on a $1 million lobbying campaign to pressure key nations on the United Nations
World Heritage Committee to back Australia’s right to mine at Jabiluka”.87
The documents, which included confidential cables from the Australian Embassy in Tokyo,
provided an insight into the extent of Australia’s politicisation of the World Heritage Committee,
the extent of its efforts to prevent an ‘In Danger’ listing and the range of other nations involved
in and/or targeted by its diplomatic effort.88 The primary document, correspondence from the
then Environment Department Secretary, Roger Beale, to his Minister, shows a government
under siege from a coordinated NGO and diplomatic campaign, and determined to develop
Jabiluka at all costs. Describing the need for a “coordinated, resource-intensive effort across
a range of portfolios both domestically and internationally”, the correspondence outlined a
comprehensive strategy to secure Australia’s objective of avoiding “a listing of Kakadu as World
Heritage in Danger, while securing arrangements for … development of the Jabiluka mine”.89
An international lobbying strategy beyond the Committee members and “dealing with IUCN,
ICOMOS and ICCROM and World Heritage Secretariat” would be developed. The Embassy
cables were particularly revealing, highlighting the extent to which Australia was secretly joined
by the United States in securing its diplomatic objectives, and the perceived threats to Australia’s
position posed by the advisory bodies.
Third extraordinary session
The third extraordinary session of the World Heritage Committee in Paris in July 1999 was the first
session in the history of the Committee “exclusively devoted to a single conservation issue”.90 This
underscored both the significance of Kakadu as a World Heritage site and the need to address
long-standing unresolved issues raised by mining in or adjacent to World Heritage areas and the
inscription of sites on the List of World Heritage in Danger against the wishes of the State Party.
Throughout the entire debate the Australian Government underscored the importance of
its sovereign right to determine what it regarded as the appropriate response to the challenges
presented by Mirarr resistance to Jabiluka. On the eve of the Committee’s consideration of
the Mission report, the government went a little further with an especially baleful letter. Writing
on behalf of the government to all delegates at the 22nd session of the Committee in Kyoto in
November 1998, Sharon Sullivan stated that an ‘In Danger’ listing “would not be an act of respect
for Australia’s sovereignty” and that to do so “may also unfortunately prevent a negotiated
settlement to these complex issues”.91
87
88
89
90
91
MacDonald 1999.
Beale 1998.
Ibid., p. 1.
Cameron and Rössler 2013, p. 145.
Sullivan 1998a.
331
In April 1999, just months prior to the third extraordinary session of the Committee, the Mirarr
public campaign was boosted when Yvonne Margarula and Jacqui Katona were jointly awarded
the prestigious Goldman Environmental Award for Excellence in Protecting the Environment.92
Also on the eve of the extraordinary session, the Australian Senate delivered a report on the
mine proposal, finding (inter alia) that Jabiluka threatened the natural and cultural World Heritage
values of Kakadu and recommending that the project not proceed.93 Underscoring the political
utility of the World Heritage Convention, the Senate report also found that a ‘World Heritage in
Danger’ listing “may be the only way of changing the Government’s present support for mining
at Jabiluka.” 94
April 1999 also saw the Australian Government present its detailed response to the Kakadu
Mission report. In a transparent assertion of its sovereign status, the government entitled the
report “Australia’s Kakadu” and delivered it on 15 April following a presentation at the Australian
Embassy in Paris to World Heritage Committee members, advisory body representatives and
staff of the World Heritage Centre. The 140-page report was highly critical of the Mission and
its findings and, across eight chapters, sought to discredit the Mirarr position on Jabiluka with,
inter alia, the mischievous reinterpretation of the anthropological record to the favour of the
government’s mining agenda, a highly selective account of the history of uranium development at
Kakadu, false and misleading interpretations of Aboriginal culture favourable to the government’s
position and the selective use of its own government reports on social impact.95
The GAC responded with its own submission, detailing the extent to which the Australian
Government would go in advancing its agenda, arguing that the Government had abandoned
the role of independent assessor and clearly become a mining advocate.96 The submission
stressed that “the only reason the Mirarr are opposed to the development of Jabiluka is because
they know it will destroy the unique source of Mirarr language, culture, sacred sites and living
tradition”.97 The GAC argued that Australia misrepresented the findings of the Ranger Uranium
Environmental Inquiry, denied key aspects of the history of uranium development in Kakadu,
made “false and misleading” claims about Jabiluka’s cultural heritage, and ignored findings of its
own Kakadu Region Social Impact Study that argued against the official pro-mining government
view.98
In a setting described by the former Director of the World Heritage Centre as “the most
dramatic I have seen in World Heritage”, the World Heritage Committee set to work on 12 July
1999 to consider Australia’s response to the Mission report, the Mirarr response to the Australian
position, hundreds of pages of scientific reports and voluminous correspondence from NGOs
92
93
94
95
96
97
98
For this they travelled to the US, meeting dignitaries such as Hillary Clinton and the Kennedy family.
Australian Parliament 1999b.
Australian Parliament 1999b, p. viii.
Environment Australia 1999.
GAC 1999.
Ibid., p. 8.
Ibid., pp. 8-17.
332
across the globe.99 The meeting heard from Senator Robert Hill on behalf of the Australian
Government and, in a world first, from Yvonne Margarula on behalf of her country and the
Mirarr people. In his address Senator Hill effectively divided cultural and scientific matters
into distinct spheres, addressing them separately from within the one technical rational
framework. Senator Hill emphasised that Australia fully supported the recommendations of
the Independent Scientific Panel (convened by the Bureau in 1998) and would work toward
consensus on agreed outstanding matters of science.100 In relation to cultural concerns,
Senator Hill argued that internal processes and dialogue were more appropriate than any
international intervention from UNESCO.101 Importantly, Australia also outlined that it had
managed to negotiate, in addition to the sequencing of the Ranger mine and Jabiluka project,
“a pause that would allow the building of a better environment in which to carry out the cultural
assessments”.102
All three advisory bodies to the Committee, IUCN, ICOMOS and ICCROM, “called for Kakadu
National Park to be inscribed on the List of World Heritage in Danger.” In their statements
the advisory bodies reiterated the final conclusion of the UNESCO mission and referenced
“continuing scientific uncertainties relating to the water management and retention system and
disposal of tailings at the Jabiluka mine, visual encroachment on the integrity of Kakadu and
threats to the tangible and associative cultural values of the Park”.103
In her historic address Yvonne Margarula, speaking in her traditional Gundjeihmi language,
addressed the question of sacred sites, noting that “Aboriginal people do not invent stories about
our culture and our sacred sites. Our law is true.”104 Underlining that any discussion about sacred
sites was very intense, Ms Margarula said Aboriginal people “must speak with the truth when we
talk about these things” and that she hoped Senator Hill would listen to Mirarr concerns. She was
especially eloquent on the appropriateness of the ‘In Danger’ proposal before the Committee.
“Some of the information presented today casts aspersions on our traditional beliefs
about the location of sacred sites. We feel that still we are not believed and trusted about
these issues. The label in-Danger is an appropriate way to describe the situation we find
ourselves in. This is a dangerous issue for us. And, so that is what I would wish to see
placed is this description.” 105
99 Audio interview of Bernd von Droste by Christina Cameron and Mechtild Rössler, Paris, 5 April 2007, cited in Cameron
and Rössler 2013, p. 172.
100 UNESCO 1999, p. 7. It is noteworthy that the technical rationality of the ‘administered world’ (as described in
Horkheimer and Adorno 2002), with its separation of the universe into the discrete spheres of ‘nature’ and ‘culture’,
underpins the World Heritage Convention itself and, naturally enough, well served the Australian Government in its
management of the Kakadu debate.
101 UNESCO 1999, p. 8.
102 UNESCO 1999, p. 9.
103 UNESCO 1999.
104 Ibid., p. 54.
105 Ibid.
333
As delegates, in turn, addressed the question as to whether Kakadu should be listed as ‘In
Danger’ the efficacy of Australia’s lobbying efforts and the reluctance of Committee members
to intervene into the affairs of an otherwise widely respected State Party became evident. A
grouping of States opposed to the listing quickly emerged and emphasised that it was “not
appropriate to include Kakadu on the List of World Heritage in Danger at this time” and that “the
development of a program of corrective measures in cooperation with the State Party” should
be undertaken.106 The strong support Australia enjoyed from the United States was critical
in the closing moments of the debate, with the US stating that “out of respect for Australia’s
sovereignty”, the “concerns raised here today can be addressed adequately without placing
Kakadu on the List in Danger”.107 In supporting the move to not list Kakadu as ‘In Danger’,
Zimbabwe – which as an African country had experienced “similar violations of its cultural values
by Europeans settlers” – appealed to the Australian Government “to respect the values, the
sacred values of the Mirarr people and to increase its dialogue with those people”.108
In the end, the extraordinary session decided against inscribing Kakadu on the List of World
Heritage in Danger and instead held that the Australian Government should submit a progress
report on cultural mapping, social and welfare benefits, and details of the output and scale of
any parallel activities at Ranger and Jabiluka by 15 April 2000. The decision also expressed
concern “about the lack of progress with the preparation of a cultural heritage management
plan for Jabiluka”, establishing the focus of its future interest in the matter.109 Supporters of the
Mirarr were divided in their response to the decision, with some environment groups mistakenly
interpreting confidential meetings between the Australian Government and the Mirarr delegation
as signalling that a ‘deal’ had been done whereby the Mirarr capitulated on their request for an
‘In Danger’ listing. In turn, the GAC defended the final outcome on the basis of gains secured
and the ongoing delay of Jabiluka’s development.110 For his part, the former World Heritage
Committee chairperson Francioni was disappointed:
“I would have liked to see more courage, a bolder Committee ... Kakadu was a very
important case because of the ... natural value but also because of the local communities
... That was a decision I would have liked to see on the part of a treaty body like the World
Heritage Committee that unfortunately was not made.” 111
Subsequent meetings of the Bureau and Committee saw a steady scaling down of interest
and activity on the part of the Centre and UNESCO in general. If the foundations for this more
‘hands-off’ approach were laid in Paris in July 1999 they were no more clearly demonstrated
106 Ibid., p. 11.
107 Ibid., p. 86.
108 Ibid., p. 87.
109 Ibid., p. 23.
110 Fagan 1999a.
111 Cameron and Rössler 2013, p. 230.
334
than at the Cairns 2000 Committee meetings. Here it was no longer a case of direct dialogue between
Mirarr and Committee members but of negotiations between Australia and the Mirarr. The deft dissection
by the Australian Government of the natural and cultural aspects of the debate effectively rendered a
cornerstone of the Mirarr argument (that the inseparability of the physical and cultural in the Indigenous
worldview constitutes the need for a significantly higher threshold of environmental protection and that
the effects of physical damage have widespread social ramifications, well beyond the mining ‘footprint’)
null and void. The cultural supremacy of Western science within UNESCO (embodied in the work
of the Independent Scientific Panel) served to demonstrate that Australia was genuinely addressing
outstanding environmental matters. Meanwhile, attention on ‘cultural concerns’ was relegated to a focus
on the dispute between Australia and the Mirarr on the development of a cultural heritage management
plan for the proposed mine site, with inordinate attention paid to the voluminous correspondence between
the parties.112 Fortunately for the Mirarr the significance of the Kakadu World Heritage debate for their
broader struggle to prevent Jabiluka’s development was lessened with the new campaign opportunities
afforded by Rio Tinto’s acquisition of the property in August 2000.
Conclusion
The Jabiluka matter was somewhat more satisfactorily ‘settled’ (to the extent that it can be in
the present) outside both Australian land rights and environmental law and the World Heritage
Convention via a direct contract between the Mirarr People and the mining company ERA under
the agreement of its parent company Rio Tinto. It is unfortunate that the agency of the Mirarr and
the GAC in successfully negotiating the so-called Jabiluka Long Term Care and Maintenance
Agreement with Rio Tinto (following commitments by the company’s chairperson, Sir Robert
Wilson, in 2002 that Jabiluka would not be developed without community support) is downplayed
by most commentators.113 Implicit in such analyses is that the Jabiluka settlement derived from
the good grace of Rio Tinto. They place the company’s decisions within a discourse of increasing
international corporate social responsibility, effectively and unfortunately casting the Mirarr in a
distinctly passive role as the recipients of industrial beneficence.114
The confidence of the Mirarr traditional owners that they might one day finally end the
Jabiluka dispute was boosted in recent times with the decision by the Australian Government
that the Koongarra uranium deposit in Kakadu would not be mined but instead incorporated into
the national park.115 This action resulted from the long-standing opposition of the Djok traditional
owner of the Koongarra area, Jeffrey Lee, to uranium mining on his land and a commitment
112 See UNESCO 2000.
113 In addition to statements in reply to questions at both the UK and Australian annual general meetings of Rio Tinto, the
chairman explicitly committed to no mining at Jabiluka without Mirarr consent on the BBC, see Sebastian 2002. The
GAC played a pivotal, although undisclosed, role in both the AGM questions and the BBC interview.
114 See especially Trebeck (2009) and Altman (2012). For a more even-handed summary see Scambary 2013.
115 Mining is prohibited in federal national parks. The Djok clan, in whose land the Koongarra uranium deposit is located,
are clan neighbours to the Mirarr people and are in a so-called ‘company clan’ relationship with the Mirarr.
335
Jeffrey Lee and Stewart Gangali outside the UNESCO building in Paris after the
World Heritage Committee added Koongarra to the Kakadu World Heritage area. Photo: Justin O’Brien
by the federal Australian Labor Party that Koongarra would not be mined.116 Mr Lee, who was
awarded the Order of Australia in 2012 for his efforts to protect his traditional land and offer it
for inclusion in Kakadu National Park, has publicly acknowledged the inspiration and support
he has received over the years from the Mirarr people and particularly from Yvonne Margarula.
A small delegation of the Gundjeihmi Aboriginal Corporation accompanied Mr Lee to Paris in
2011 to facilitate a minor boundary modification to the Kakadu World Heritage area to include
the Koongarra area.117 In February 2013 the Australian Government legislated to incorporate
Koongarra into Kakadu National Park, thereby ruling out any mining of the site.
It is without doubt that the international prominence of the Kakadu World Heritage debate
delivered the Mirarr significant leverage in their negotiations with Rio Tinto. The World Heritage
Committee proved an effective international stage to highlight the impacts of the imminent destruction
of country and culture in a remote but significant corner of the globe. That the Committee and the
Convention itself were arguably not able to adequately protect Kakadu but deferred instead to the
State Party intent on mining is an enduring disappointment. It should be remembered, however,
that the Jabiluka debate is not ended but merely in a lull.

116 See Murdoch 2007. The federal branch of the Liberal Party, Australia’s conservative party, largely concurred with the
Labor Party’s view on Koongarra.
117 UNESCO 2011, pp. 248-249. Ms Margarula has to date sadly received no official government recognition for her
decades-long struggle to protect her land in Kakadu from mining.
336
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339
340
341
Rainforest Aboriginal Peoples and the Wet Tropics
of Queensland World Heritage Area:
The Role of Indigenous Activism in Achieving
Effective Involvement in Management and
Recognition of the Cultural Values
Henrietta Marrie and Adrian Marrie
“Over the past 20 years, I have seen the World Heritage listing raise the wider community’s
appreciation of our country to that which it deserves. The listing seemed to formalise what
we, as Traditional Owners, already felt toward the land and we are now working hard to
have our land formally recognised for its cultural values.”
Phil Rist, Nywaigi Traditional Owner and CEO, Girringun Aboriginal Corporation1
1
WTMA 2009, p. 53.
Left: A Gimuy Walubarra Yidinji Elder, Gudju-Gudju Fourmile, gathering bush tucker (wild macadamia nuts) in the rainforest.
Photo: Adrian Marrie
342
Marginalised in the initial World Heritage listing processes, this chapter outlines the struggles of
the Rainforest Aboriginal peoples and the processes they engaged in to gain a seat at the table as
partners in the cooperative management of the Wet Tropics of Queensland World Heritage Area,
and their continuing quest to have the cultural values of the World Heritage Area recognised on a
par with its natural values.
Introduction
T
he Wet Tropics of Queensland World Heritage Area (WTWHA), covering 894,420 hectares,
is located within and covers slightly less than half of the Wet Tropics Bioregion (1,967,000
hectares). It extends in a narrow band for approximately 600 kms along the northeast Queensland
coastline from Cooktown in the north to Townsville in the south (Map 1). It is the traditional home
of 18 distinct rainforest Aboriginal peoples2 who have inhabited the region continuously for up to
100,000 years.
To the 18 hunter-gatherer Aboriginal peoples of these rainforests, the Wet Tropics Bioregion is
a series of cultural landscapes which identify their place in their country and reinforces their ongoing
customary laws and connections to country, and their obligations to care for and manage it –
traditional obligations that are generally expressed throughout Indigenous Australia in the words
‘Caring for Country’.
The Rainforest Aboriginal peoples’ experience of the WHA is complex and its impacts
are felt differently among the various peoples. Their experiences are fashioned more by
over-riding issues concerning land tenure, particularly with regard to recognition of their
native title, and dealing with a plethora of government agencies that have actual day-to-day
management responsibilities in the WHA and adjacent lands, than issues raised directly as
a consequence of parts of their traditional estates falling within the WHA. They are also
shaped by Rainforest Aboriginal peoples’ own struggles to overcome welfare dependency,
and to find a place within mainstream Australian society. As native title claims are
determined, the WHA is starting to provide more business and employment opportunities
for them and thus could play a significant role in alleviating Aboriginal poverty and enhancing
life opportunities.
In the context of this chapter, it also needs to be understood that the status of the
Indigenous peoples of Australia, as First Nations peoples, is not recognised in the Australian
Constitution, which came into effect in 1901 with the establishment of the Commonwealth
of Australia. Further, no treaty was ever concluded between the British colonisers and the
Indigenous peoples and, accordingly, Indigenous peoples in Australia have no treaty rights
2
The 18 Aboriginal peoples signatory to the Wet Tropics of Queensland World Heritage Area Regional Agreement are
the Bandjin, Djabugay, Djiru, Girramay, Gugu Badhun, Gulgnay, Gunggandji, Jirrbal, Koko Muluridji, Kuku Yalanji,
Ma:Mu, Ngadjon-Jii, Nywaigi, Warrgamay, Warungnu, Wulgurukaba, Yidinji and Yirrganydji peoples (WTMA 2005a,
pp. iii-iv). There are also several named clan groups within these peoples.
RAINFOREST ABORIGINAL PEOPLES AND THE WET TROPICS OF QUEENSLAND WORLD HERITAGE AREA
343
Map 1: The Wet Tropics World Heritage Area and the Wet Tropics Bioregion.
Source: WTMA
which would recognise or guarantee ownership of land and natural resources and continued
enjoyment of their cultures and lifestyles. Under the Australian Constitution, Indigenous
people have the same rights and responsibilities as all Australians, and have no special
344
status. None of their rights as First Nations peoples constitutionally rec ognised or protected.3
Until the 1967 Constitutional Referendum, responsibility for Indigenous peoples was solely a
state matter.4 The referendum enabled the Common
wealth Go
vernment to take overall
responsibility for Indigenous affairs, although the states and territories have continued to make
and amend laws in relation to Indigenous peoples, and to maintain responsibilities for Indigenous
peoples within their own jurisdictions. Without recognition of any specific political, civil, social,
cultural or economic rights, Indigenous peoples are subject to the same laws as other Australians,
and laws and policies that are implemented with regard to or for the benefit of Indigenous people,
such as state and territory Aboriginal land rights and cultural heritage protection laws, exist
within the bounds of what is politically acceptable to the wider society. The only major source of
protection for Indigenous peoples in Australia is the Commonwealth’s Racial Discrimination Act
1975, which gives effect to Australia’s obligations under the International Convention on the
Elimination of All Forms of Racial Discrimination. Without constitutional recognition of Indigenous
rights, Indigenous peoples in Australia exist in a state of perpetual legislative insecurity – what
one government (federal or state) grants, another can take away depending on the electoral
climate. Under Section 51(xxvi) of the Constitution – the so-called ‘race power’ – racist policies
were entrenched in what was generally referred to as the White Australia Policy5 which effectively
existed within the separate states pre-federation and continued post-federation until the 1960s.
While this policy effectively barred non-Caucasian people from migrating to and settling in
Australia, it also rationalised the protective segregation policies with regard to Aboriginal
peoples, particularly across northern Australia.
History of the WTWHA
European settlement of the region began in the 1870s. Land was gradually cleared along the coastal
strip between the sea and the Great Dividing Range and on tablelands suitable for agriculture
and cattle grazing. For Aboriginal peoples, the colonization process was brutal. Many Rainforest
Aboriginal people were massacred or succumbed to introduced diseases. In 1897, the Queensland
Government implemented the Aborigines Protection and Restriction of the Sale of Opium Act and
established the office of the Chief Protector of Aborigines to try to stem the abuse of Aboriginal
people and offer a measure of protection by setting up a number of Aboriginal reserves for their
3
4
5
Although some national-level laws (notably the Native Title Act) do recognise rights that are inherent to indigenous
peoples in Australia, the lack of constitutional protection means that such recognition is always at the mercy of
changing political circumstance.
In the 1967 Constitutional Referendum, 90.77 per cent of Australians voted in favour of two amendments to the
Australian Constitution removing the provisions that (i) excluded Aboriginal Australians from the census and
(ii) prevented the Commonwealth Government from enacting laws affecting Aboriginal peoples, a power that had
previously been the preserve of the states.
The Immigration Act 1901 (Cwth) was the legislative basis for this policy. Section 51 (xxvi) allows the Commonwealth
to legislate in regard to “any race for whom it is deemed necessary to make special laws”. This clause is still in force
although there is some hope that it will be removed in the future.
345
protective segregation from mainstream society. By the 1920s, most Aboriginal people in northeast
Queensland had been rounded up off their traditional lands and placed on reserves run by Christian
missionaries at Yarrabah, Wujal Wujal (formerly the Bloomfield River Mission), Daintree River,
Mossman Gorge, Mona Mona, Murray Upper and Palm Island. Many small government reserves
were also established on the fringes of small rural townships such as Ravenshoe, Malanda,
Mareeba, Atherton, Tully and Ingham where small groups of Aboriginal people remained until these
township reserves were largely disbanded in the 1960s. Thus Aboriginal peoples in Queensland,
from 1897 until the mid-1970s, were ‘managed peoples’ – effectively ‘wards of the state’ – subjected
to the wide-ranging discretionary powers of the Chief Protector and the Reserve Superintendents.
These officials administered a series of restrictive laws6 which governed the movement of Aboriginal
people on and off reserves, their employment (including working conditions and wages), education,
financial affairs (with powers to manage their personal bank accounts) and, of course, their right to
own property. They also restricted who they could associate with and who they could marry. And,
until 1965, Aboriginal people in Queensland could not vote in state elections. Aboriginal people
speak of this time as ‘living under the Act’, although they could apply for exemption certificates
which enabled them to live and work in mainstream society subject to strict conditions.7 Under
mission regimes, Aboriginal people were generally forbidden to speak their languages or practice
their ceremonies. The missionaries enforced this through the dormitory system whereby children
were taken from their parents and placed in special dormitories where they were given a basic
education and taught how to behave like ‘white-fellas’. In some communities, such as Palm Island,
this system remained in force until the mid-1970s.8
Following the 1967 Constitutional Referendum and the passage of the Race Discrimination
Act 1975 (Cwth), the situation regarding Aboriginal peoples in Australia began to change quite
rapidly. In Queensland, the Community Services (Aborigines) Act 1984 vested secure title to
land in the form of a deed-of-grant-in-trust in a number of reserve communities, including
Yarrabah, Wujal Wujal and Palm Island, administered by Aboriginal community councils elected
by community members to run their communities and administer their lands. Such communities
generally became known as ‘DOGIT communities’. This Act enabled these communities to enjoy
a measure of self-government patterned on mainstream structures of governance. For members
of the Rainforest Aboriginal communities generally, employment was found in the agricultural,
timber and cattle industries, and as domestic workers; however, in the 1960s, with the
mechanisation of the sugar industry and the introduction of equal wages in the cattle industry,
many Aboriginal people became unemployed and welfare dependent. This situation has
continued to the present, although Aboriginal people who gained exemption certificates and
6
7
8
After the passage of the Aborigines Protection and Restriction of the Sale of Opium Act 1897 (Qld) followed the
Aborigines Preservation and Protection Act 1939 (Qld) amended in 1946; Aborigines’ and Torres Strait Islanders’
Affairs Act 1965 and 1967 (Qld); and the Aborigines Act 1971 (Qld) and Regulations 1972 which were repealed by the
Community Services (Aborigines) Act 1984 (Qld). The Commonwealth Government’s Racial Discrimination Act 1975
forced state governments to repeal the discriminatory clauses in their laws dealing with Indigenous Australians and
revise their administrative practices or face possible challenges in the High Court of Australia.
The regulations regarding exemption certificates were in force from 1939 to 1965.
For an account of life ‘under the act’, read Bill Rosser’s This Is Palm Island (1978) and Return to Palm Island (1994).
346
Cape Tribulation in Daintree National Park, Wet Tropics World Heritage Area.
Photo: Courtesy of Tourism and Events Queensland
moved off the reserve communities to live in the mainstream, or who managed to avoid being
removed to such communities, have generally fared better than their DOGIT community
counterparts on all socio-economic indicators.
By the 1980s, nearly all the arable and pastoral lands on the coastal side of the Great
Dividing Range within the Wet Tropics Bioregion and on the Atherton Tablelands had been
cleared save the lowland forests of the region generally known as ‘the Daintree’. In effect, what
remained were a few large areas of mountain forests and some smaller isolated patches,
sometimes connected by narrow corridors of rainforest vegetation. This meant that some tribal
groups and their clans had lost all or most of their land to rural land-holders and urban settlement,
with the only remaining remnants of their lands still covered by natural forests being in
mountainous areas. Other tribal groups, like the Eastern Kuku Yalanji in the northern areas of
the Wet Tropics Bioregion, remained relatively undisturbed on their traditional lands and were
consequently able to maintain their languages and retain most of their cultural practices. Most of
the remaining forest lands in the central and southern areas of the Wet Tropics Bioregion were
under government tenure as National Park, State Forest and Timber Reserve to which public
access was officially restricted.9
9
Despite restrictions, Rainforest Aboriginal people still continued to hunt, gather and fish using traditional means – all
low impact activities. Authorities tended to ‘turn a blind eye’ because, if Aboriginal people were helping to support
themselves, then this meant less expense to government for their rations.
347
Consequently, by the time of listing in 1988, the Wet Tropics of Queensland World Heritage
Area comprised slightly less than half of the Wet Tropics Bioregion. The listing of the remaining
areas of wet tropical rainforests as a World Heritage site was achieved largely through a
desperate rear-guard action by the conservation movement to save what was left of the Wet
Tropics Bioregion from further destruction. While the focus from the early 1980s was on the
Daintree, with the scientific realisation at the time that the Wet Tropics rainforests were in fact
the world’s oldest living rainforests estimated to be over 100 million years old,10 efforts were
extended to preserve what was left of these forests within the Wet Tropics Bioregion. The World
Heritage nomination of the forests was strenuously opposed by the National Party-led
Queensland Government, most local government councils in the region and by the timber
industry. However, the federal Labour Government was committed to the nomination and
conducted wide consultations within the mainstream Wet Tropics community, including offering
compensation packages to the timber industry. Rainforest Aboriginal peoples were marginalized
during the consultation process, and Aboriginal communities such as Yarrabah, Wujal Wujal,
Mona Mona and Mossman Gorge opposed the nomination due to the lack of consultation and
because it appeared that World Heritage listing would subject them to an overall management
plan and affect their rights to self-determination and self-management11 and place further
restrictions on their already limited enjoyment of the remaining rainforests. In particular, they
were concerned that listing would affect their ability to access the forests and forest resources
for traditional hunting and gathering, for cutting timber to build houses and for other domestic
and commercial purposes.12 Furthermore, there was no assurance that the Rainforest Aboriginal
peoples would play an adequate role in the future management of the WHA.
The fact that the Rainforest Aboriginal peoples had been sidelined in the nomination process,
and that several Aboriginal communities were opposed to the World Heritage listing of their lands,
10 Their age is now estimated at 180 million years – tens of millions of years older than the Amazon rainforest in South
America (see www.tq.com.au).
11 Self-determination as government policy rhetoric in the 1970s and ‘80s was clearly articulated within the framework
of Australian law and did not have the same meaning as the term that was evolving in the development of the UN
Declaration on the Rights of Indigenous Peoples. It was about Indigenous Australians having the right to develop their
own governance institutions (such as community councils, and health, housing and legal organisations), and to take
control of and manage their own affairs, i.e., it was really about self-management. The Commonwealth Government’s
policy of self-determination was often cynically described as ‘self-management without funds’.
12 For instance, in October 1987, the Chairman of Yarrabah Aboriginal Council, Fr Lloyd Fourmile, wrote to the
Commonwealth Minister of the Environment: “The proposed boundary and the process of the proposal show no regard
for the Yarrabah community’s land rights and entitlements to self-management and self-determination. It seems that
your Government is not prepared to trust the Aboriginal community with the conservation of its own land”. In November
1988, Fourmile’s successor Peter Noble wrote to the Minister: “you have offered us nothing but the assurance that
we will still be able to use our land as we do presently, if all goes well… We thought you would do more to consult
with us. We thought you would have more regard for our land rights and self-management… Yet you have never been
here… We finally met with you on October 18, 1988, only to find that our inclusion in World Heritage Listing was nonnegotiable… We as an Aboriginal community are sick of outside interference in our affairs… we oppose the listing of
our land. If listed, it will be without our consent.” (Quoted in Brennan 1988).
348
was well known to both the World Heritage Committee and IUCN.13 The nomination dossier
contains no evidence that Rainforest Aboriginal peoples had been consulted during its elaboration
and no information regarding their agreement to the inclusion of their lands. In fact, the Advisory
Body Evaluation of the nomination by IUCN explicitly notes that “the position of the aboriginal
owners on the question of inclusion of their land within this nomination has not yet been formally
presented.” However, IUCN considered this as a “secondary issue” and recommended that the
nomination should nevertheless be approved:
“…it is the opinion of IUCN that the nomination should be approved and that the management
authority proceed with its work to institute an effective management regime for the site.
Secondary issues such as… aboriginal lands can subsequently be addressed through the
detailed management planning process set to begin once the site has been inscribed.”14
The Committee followed the advice of IUCN and, in December 1988, inscribed the area on the
World Heritage List, ignoring the concerns about the lack of consultation with traditional owners
and merely recommending “that an appropriate management regime be established”.15
The 1980s saw the establishment of a number of Aboriginal representative bodies within the
region: the statutory Aboriginal community councils in Yarrabah, Wujal Wujal and Palm Island; the
Cape York, North Queensland and Central Queensland Aboriginal Land Councils; and then, with
the establishment of the Commonwealth Aboriginal and Torres Strait Islander Commission (ATSIC)
in 1988, three ATSIC regional councils (Cape York, Cairns and District, and Townsville).16 Funding
through the ATSIC regional councils also enabled a number of smaller Traditional Owner-based
community organisations to be established during the 1990s. All these bodies relied on federal and/
or state grants for their existence and to carry out their functions. When the federal government
abolished ATSIC in 2005 and mainstreamed its funding responsibilities, many of these small
community-based Indigenous organisations folded, and the Rainforest Aboriginal peoples’ voice
was seriously compromised. In addition to the Aboriginal representative bodies, there were also
federal and state government ministries and departments with responsibilities for Indigenous
affairs, as well as sections within other government agencies with responsibilities for Indigenous
health, housing, education, employment and training, the protection of Indigenous cultural heritage,
the funding and promotion of Indigenous arts, and the issuing of permits for traditional hunting.
13 In June 1988, a large delegation of the Queensland Government, including two Aboriginal representatives, travelled
to Paris to bring their opposition to the World Heritage listing to the attention of the Bureau of the World Heritage
Committee (WTMA 2007). According to Brennan (1988), IUCN and the Bureau “were not happy at the idea of including
Aboriginal land unless the owners were involved in and fully endorsed the aims of the Convention in their area as at
Uluru and Kakadu”. The Bureau “requested the Australian authorities to provide clarifications and further information
on… land ownership by Aboriginal peoples…” before the 12th session of the Committee, at which the decision
regarding the listing of the Wet Tropics was to be taken (UNESCO 1988, p. 4).
14 IUCN 1988, pp. 11, 13.
15 UNESCO 1988b, p. 14.
16 Initially there were four: Yarrabah and Palm Island had their own ATSIC Regional Council, but it was decided in the mid1990s that it should be disbanded in favour of Yarrabah amalgamating with the Cairns and District Regional Council
and Palm Island becoming part of the Townsville Regional Council.
349
Yidinji rangers on Lake Morris within the Wet Tropics World Heritage Area. Photo: Jenny Lynch
The current Rainforest Aboriginal population with direct connections to the WHA is about
20,000, while the total population of the Wet Tropics Bioregion (including Indigenous people with
no traditional connection to the WHA) is around 260,000. About a third of the Rainforest Aboriginal
population lives in the DOGIT communities of Yarrabah and Wujal Wujal, and former Aboriginal
reserve communities at Mossman Gorge, Murray Upper, and around Kuranda – all within or
adjacent to the boundaries of the WHA. These are the communities that are generally most directly
impacted by the WHA. The bulk of the Rainforest Aboriginal population, however, live in the two
regional cities of Cairns and Townsville and in the smaller rural townships of Mossman, Gordonvale,
Babinda, Mareeba, Innisfail, Tully, Malanda, Ravenshoe, Millaa Millaa, Cardwell and Ingham.
Cairns, with its international airport, is the major tourist hub for the region, providing easy access
to prime tourist sites within the northern and central sections of the WHA, such as Mossman Gorge,
the Daintree and Barron Gorge.
In the DOGIT communities unemployment is high, often around 70-80% of the able-bodied
work-force, and most of the jobs that are there are provided through the community councils.
Welfare-dependency is very high, with most families and individuals relying on various forms of
social security benefits. Lacking a viable rate base, their local community councils rely heavily on
state and federal funds to carry out their day-to-day responsibilities. A major source of funds for
over 20 years has been the federal government’s Community Development Employment Program
350
(CDEP) – essentially a ‘work-for-the-dole’ scheme – which generally enabled councils to employ
community residents to undertake community maintenance and infrastructure work, and operate
such services as the community ranger programs.17 CDEP was also available to regional Rainforest
Aboriginal community organisations operating in local towns, enabling Traditional Owner groups to
fund caring for country activities within the WHA, and on adjacent tribal lands. In a move aimed at
lessening welfare-dependency by forcing Aboriginal people to look for work, the federal government
no longer made CDEP available within the region in 2008, and consequently ranger and caring for
country activities were initially severely curtailed. However, realising the importance of such
programs, funds became available under the federal government’s new ‘Caring for Country’
initiative.
In the years leading up to World Heritage listing, and using the (developing) Draft United
Nations Declaration on the Rights of Indigenous Peoples as a reference point, the focus of
Rainforest Aboriginal peoples’ concerns was primarily on the recognition of cultural values, access
to and protection of sacred and other sites of significance, access to flora and fauna for traditional
purposes, protection of intellectual and cultural property, involvement in decision-making and onground management, creating employment, and community ranger and training programs. While
these earlier concerns still remained on their agenda, from the mid-1990s, particularly after the
passage of the Aboriginal Land Act 1991 (Qld) and the Native Title Act 1993 (Cwth), reaching
agreement about tenure, land use and management regimes has become the key focus for
Rainforest Aboriginal people in their struggle to maintain the vitality of their cultural values and to
achieve social and economic benefits from their traditional lands.
Spiritual
- creations stories
- sacred sites
- burial grounds
- bora grounds
- ceremony
- responsibility
for country
- totems
Ecological
Social
- bush tucker
- language
(animals and plants)
- living areas and
- bush medicine
camps
- knowledge of ecological - walking tracks
relationships
- kinship systems
- fire management
- clans
- seasonal calendar
- cultural identity
- traditional law
Economic
- hunting and gathering
- tools
- food preparation
- shelter building
- harvesting resources
- art and craft
Figure 1: Some Rainforest Aboriginal cultural values relating to land use in the WHA18
17 These community ranger services work in conjunction with Queensland Parks and Wildlife Service (QPWS), the Great
Barrier Reef Marine Park Authority and the Department of Primary Industry & Fisheries, but their jurisdiction is limited
to their DOGIT lands and they have no powers of enforcement. They perform important work with regard to issuing
hunting permits for dugong and turtle to community members, monitoring hunting activities, supervising traditional
forest management activities such as seasonal burning, and carrying out weed and invasive species control.
18 WTMA 2005b, p. 88. See also Leo et al. 2011.
351
Governance of the WTWHA
The Wet Tropics of Queensland was inscribed on the World Heritage list on 9 December 1988 as
a property that fulfilled all four criteria regarding natural values. The broad structural and funding
arrangements for the management of the WHA are set out in the Wet Tropics World Heritage Area
Management Scheme, an intergovernmental agreement signed by the Prime Minister and Premier
of Queensland in 1990.19 The Wet Tropics World Heritage Protection and Management Act 1993
(Qld) (herein ‘the Queensland Act’) was proclaimed on 1 November 1993 and the Wet Tropics of
Queensland World Heritage Area Conservation Act 1994 (Cwth) (herein ‘the Commonwealth Act’)
on 15 March 1994. The intergovernmental agreement is scheduled in the Queensland Act and
given effect by section 3 of the Commonwealth Act. The Commonwealth Act provides the legal
basis for the Australian Government to meet its obligations under the World Heritage Convention.
The special association of Rainforest Aboriginal people with the land in the WHA is recognised
in both the Queensland and Commonwealth Acts. The preamble to the Queensland Act states: “It
is also the intention of the Parliament to acknowledge the significant contribution Aboriginal people
can make to the future management of cultural and natural heritage within the Area, particularly
through joint management agreements”.
The Queensland Act provides the legal basis for the Wet Tropics Management Plan 1998
which regulates land-use activities in the WHA through a zoning and permit system. The
implementation of the plan is the primary responsibility of the Wet Tropics Management
Authority.
The Wet Tropics Management Authority (WTMA)
WTMA, which has managed the area since 1991 as a partnership between the Commonwealth
and Queensland governments, was set up to ensure that Australia’s obligations under the World
Heritage Convention are met in relation to the WHA. The Authority is a body corporate, with
statutory powers defined under the Queensland Act. WTMA’s functions, as defined under section
10 of the Queensland Act, are, inter alia, to:
• develop and implement policies and programs for the management of the Wet Tropics
Area, including management plans;
• facilitate and enter into Cooperative Management Agreements;
• rehabilitate and restore the Area;
• develop public and community education programs;
19 Commonwealth and Queensland Ministers revised the agreement in 1995 with a second review initiated in late 2005.
This review took place in the context of an examination of governance and funding arrangements for all Queensland
World Heritage properties.
352
• liaise with the Queensland and Australian Governments, agencies and international
organisations;
• monitor the state of the Area; and
• advise and report to the Minister and the Ministerial Council on the state of the Area.
In performing its functions, the Authority “must, as far as practicable – (a) have regard to the
Aboriginal tradition of Aboriginal people particularly concerned with land in the wet tropics area;
and (b) liaise, and cooperate with, Aboriginal people particularly concerned with land in the wet
tropics area” (section 10, para. 5).20
The Authority is a small organisation that works in partnership with other agencies and
stakeholder interest groups. It has produced a range of strategic policy and planning documents
which guide management of the WHA, consistent with its statutory responsibilities, such as the Wet
Tropics Conservation Strategy (2004).21
Management structure
The intergovernmental agreement provides for a Wet Tropics Ministerial Council comprising
two Commonwealth and two Queensland Government Ministers. Its function is to coordinate
policy and funding for the WHA between the Commonwealth Government and the Queensland
Government. The Queensland Minister for Environment chairs the Council.
The Board of Directors of the WTMA is set up under the Queensland Act and originally
consisted of six directors: the Executive Director of the WTMA (as a non-voting board member),
two directors appointed by the Commonwealth Government, two directors appointed by the
Queensland Government, and a chairperson appointed by the Ministerial Council. According to
the Commonwealth Act (Section 6), the Minister may, on behalf of the Commonwealth, make
nominations of members to the WTMA Board, such nominees “must include… one or more
Aboriginal representatives who have appropriate knowledge of, and experience in, the protection
of cultural and natural heritage.”
Indigenous representation on the Board, subject to the Commonwealth Minister’s discretion,22
was thus guaranteed from the beginning, and Board meetings since 1994 have generally
included one Indigenous representative nominated by the Commonwealth Government.23
20 Aboriginal people are “particularly concerned with land”, according to section 5 of the Act, “if – (a) they are members
of a group that has a particular connection with the land under Aboriginal tradition; or (b) they live on or use the land or
neighbouring land”.
21 WTMA and QPWS 2004.
22 The distinction between the words ‘may’ and ‘must’ has proved critical in the exercise of Ministerial powers with regard
to the WTWHA.
23 Initially there were a couple of occasions when

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